Texas Injury Lawyer Blog

On September 1, 2011, Section 82.0651 of the Texas Government Code went into effect. Section 82.0651 allows a barratry lawyer to collect from an ambulance chasing lawyer or his investigator a $10,000 fine as well as the attorneys fees and expenses expended in the collection of the fine. The fine is considered a liquidated damage and is paid to the solicitation victim who refused to sign a contract with the unscrupulous attorney.

A number of Texas lawyers have risen to the occasion and are openly advertising that they will assist solicitation victims. The most common scenario is when an auto or truck wreck occurs the innocent drivers or passengers are solicited by "ambulance chasers." These attorneys oftentimes use so-called "investigators" to do their dirty work but it is also common, particularly in severe injury accidents, for the lawyer himself to personally contact the victims or their families and illegally solicit employment. Each of the acts of solicitation gives rise to a $10,000 penalty payable to the victim.

In the East Texas area Craig Daugherty of Tyler is assisting solicitation victims. In South Texas, Bill Edwards of Corpus Christi has been actively pursuing ambulance chasing attorneys for a number of years. In the Dallas/Fort Worth area Chris Whitaker with the firm of John R. Salazar P.C. is pursuing lawyers who violate the barratry laws. In Houston attorney Thomas J. Henry offers to assist injured claimants who have been solicited by police officers, tow-truck drivers, body shop employees, telemarketers, funeral home personnel, news reporters, clergy, chiropractors, doctors, hospital employees, insurance agents, or law firm "investigators" who work with unethical attorneys. These "case-runners" are usually working on a commission basis for an attorney and may offer gifts, money or promises in an attempt to get the injured victims to sign a contract with a particular attorney.

For more information contact a Tyler Injury Attorney today.

The addition of an underinsured motorist claim to a Texas tort claim often adds a third and sometimes a fourth choice of venue. Texas venue rules provide that a tort claim may be brought both where the accident took place or where the tortfeasor resides at the time of the occurrence. However, an underinsured motorist claim is a suit on a contract and may be brought in the county of the corporate defendants' principal place of business or where the contract is to be substantially performed.

Consider for example the situation where a driver from Gilmer and a driver from Longview both go to Tyler to shop and become involved in an auto accident caused by the Longview driver. Based on these facts alone the venue rules would allow the lawsuit to be filed in either Smith County or Gregg County...two not so great choices of venue from an injured persons' perspective. However, add to this scenario the fact that the Gilmer resident purchased underinsured motorist coverage from an automobile liability insurance company with a principal place of business in Dallas, Texas. The place of performance of an automobile liability policy has been held to be in the county where the insured lives. Thus, the claim could be filed not only in Gregg and Smith counties but also in Upshur and Dallas counties. Under Texas venue rules if venue is proper as to any Defendant then it is deemed proper as to all Defendants. Thus the claim could be properly filed in Upshur County which is a much more claimant friendly choice of venue.

The Defendants may challenge the Plaintiff's choice of venue. However, Texas Rule of Civil Procedure 51(b) provides that: "Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion, the two claims may be joined in a single action;...." The bringing of a tort claim and an underinsured motorist claim in the same cause of action falls squarely within the authorization of Rule 51(b).

Defendants sometimes seek to sever the underinsured motorist claim thereby eliminating an undesirable(from the Defendant's perspective) choice of venue. However, the Texas Supreme Court has held that when considering a motion to sever:
"A trial court properly exercises its discretion in severing claims when:
1) The controversy involves more than one cause of action;
2) The severed claim is one that could be asserted independently in a separate lawsuit; and
3) The severed actions are NOT so interwoven with the other claims that they involve the same facts and issues."

Guaranty Federal Savings v. Horseshoe Operating Company, 793 S.W.2d 652, 658 (Tex. 1990).

If the Trial Court follows the law an auto accident victim should be able to litigate both the underlying auto claim and the underinsured motorist claim in the victim's home county.

Although every car wreck gives rise to different issues there are several things that everybody should, but usually doesn't, know.

The at fault driver and their insurance company is not obligated to provide the auto accident victim with a rental vehicle if the victim's vehicle is a total loss. Insurance companies sometimes pay for a rental vehicle in a total loss situation either because they initially mistakenly believed that the vehicle was repairable or because they hoped to keep the injured victim from hiring a lawyer but there is no legal requirement that they do so. The tortfeasor's legal obligation in Texas is limited to providing a rental vehicle during the reasonable period that it take to repair the damaged vehicle.

Just because a police officer issues a traffic citation does not mean that the driver who received the ticket is legally liable for the accident. A traffic citation is what is known as an "extra-judicial finding" and it is meaningless in the legal world. However, if the person receiving the ticket pleads guilty to the allegations in the citation then their act becomes a "judicial admission" which is admissible against them. Nonetheless, insurance adjusters often place considerable weight on traffic citations and it is obviously good to have them issued in your favor.

Personal injury protection insurance is a no fault, no subrogation coverage that pays for accident related medical expenses and lost wages regardless of fault. PIP also often pays benefits even though there is some other type of coverage that covers the same expense. PIP is often the only no fault coverage that pays for things like broken eye glasses or dentures.

If you show up at a Texas hospital within 72 hours of an accident and you are in need of emergency care then the hospital must provide you with emergency medical care. However, if you have been in an automobile accident then the hospital has a right to file an emergency medical services lien against the proceeds of any public liability policy that covers the accident. The problem arises because studies consistently show that the hospitals that file these liens usually inflate their bills by between 200% and 300%. Dealing with these liens can be quite difficult.

If you are in an accident, go to the emergency room for treatment, and have health insurance then the hospital must file on your health insurance. If the hospital fails to file on your health insurance then they waive the right to collect more than the amount which they would have received from your health insurance. If a Texas hospital believes that there is liability insurance available many will refuse to file on the victims health insurance, inflate the bill by 200 to 300%, and file a lien in hopes of getting a windfall. This practice is illegal and should be challenged.

If you are involved in an accident and are unsuccessfully solicited by an attorney or his representative then recent changes to the Government Code provide that you have a right to be paid a $10,000 penalty or fine by each person involved in the illegal solicitation. If you incur attorneys fees in collecting the fine then you are also entitle to recover your attorneys fee.

The Texas Legislature recently approved a new barratry fine when it passed Texas Senate Bill 1761F which added Texas Government Code Section 82.0651 to provide that any accident victim who is solicited by a lawyer or his investigator is entitled to receive a $10,000 penalty in addition to actual damages and attorneys' fees necessary to collect the $10,000 penalty even though the victim declined the solicited employment. Section 82.0651 went into effect on September 1, 2011. The changes to the law are designed to curb a growing problem with barratry, which is also commonly known as ambulance chasing, case running, and illegal solicitation by lawyers or their so-called investigators.

Texas Penal Code Section 38.12 makes it a crime for any person for economic gain(payment) to solicit legal employment , either in person or by telephone, for himself or for another. Texas Government Code Section 82.0651 provides that a person who is solicited by conduct which violates Penal Code Section 38.12 or the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas is entitled to receive the ten thousand dollar penalty. For those accident victims who are persuaded by illegal solicitation to hire a lawyer Section 82.0561 that the victims may recover all attorneys fees and expenses paid under the contract, actual damages paid under the contract, and attorneys fee necessary to enforce these rights.

It should be emphasized that the legitimate recommendation of an ethical attorney by friends, family, former clients, etc. is encouraged and is not in any way intended to be discouraged by the changes to the barratry laws. It is the conduct of the lawyer in soliciting employment or paying others to solicit employment that gives rise to the penalties.

Victims who are illegally solicited should preserve evidence of the illegal solicitation such as the phone number used, name of the solicitor, documents, lawyer's name and witness information and contact the authorities.

Understanding Texas' Loser Pays Law and its probable effect is much easier if one important principle is remembered. All of tort reform is designed to sound reasonable while at the same time giving the insurance industry an unfair advantage in litigation and at the court house. The concept of "Loser Pays" certainly sounds reasonable. However, the Loser Pays legislation in its original form provided that only the plaintiff was subject to the Loser Pays penalty. The proposed law would have allowed the defendants to stonewall, assert frivolous defenses, and string the plaintiffs out on the most legitimate of claims while using the remote threat of Loser Pays to force a reduced settlement.

Much to the chagrin of the insurance lobby the Texas Legislature wouldn't go that far. The Legislature applied the Loser Pays principle to both sides while giving only the defendant the right to invoke the application of Loser Pays. Loser Pays does not apply unless invoked by the defendant but once invoked it applies to both parties. The theory was that the defendant would invoke Loser Pays only in those cases where the plaintiff was asserting frivolous claims. The fallacy to that theory is that there are virtually no jury trials over frivolous claims. Trial lawyers do not get paid unless they win and have no incentive to try frivolous claims. Both plaintiff and defense lawyers know that you simply cannot get twelve jurors to go into a jury room and award money damages for a frivolous claim. Verdicts are often misreported by the insurance lobby around election time in a way that makes them sound frivolous but everybody associated with the litigation industry knows that frivolous verdicts are as rare as hens' teeth.

Insurance companies and their lawyers will be extremely unlikely to invoke Loser Pays because the likely effect would be to increase the amount of money that they would have to pay when they used the litigation process to try to wear down people making legitimate claims.

For more information contact a Tyler Injury Attorney today.

In many situations the Texas Dram Shop Act results in the server of alcoholic beverages being legally responsible for damage done by an intoxicated patron in an auto accident. Chapter 2 of the Alcoholic Beverage Code entitled, "Civil Liabilities for Serving Beverages", otherwise known as the Dram Shop Act, §2.02(1), provides that a server of alcoholic beverages pursuant to a license or permit issued under the laws of the State of Texas may be subject to liability for damages if "at the time the provision occurred it was apparent to the provider that the individual being sold, served, or provided with an alcoholic beverage was obviously intoxicated to the extent that he presented a clear danger to himself and others; . . .". Dram shop liability is often misunderstood as liability which automatically arises as a result of a night club serving alcohol to a patron and that patron subsequent causing an accident while under the influence of that alcohol.

Dram Shop liability is, in essence, the negligent continuing to serve a patron that is obviously intoxicated. It is the actions of the server after the server is on notice that the patron is intoxicated that gives rise to liability. The intoxicated state of the drunk driver may be proved through the analysis of credit card receipts, bar tabs, blood alcohol levels, testimony of the cocktail waitress, or eyewitnesses at the bar.

The liability of an adult 21 years of age or older who provides alcohol to a minor under the age of 18 is much easier to establish. Alcoholic Beverage Code Chapter 2, § 2.02(c), provides that if an adult who is not a minor's parent or guardian provides alcohol to a minor or allows alcohol to be served to a minor then the adult is liable for damages proximately caused by the intoxication of the minor. In simple terms, this law results in a parent who provides alcohol for their teenage children's party being liable for any damages caused by any of the minors at the party who drink too much and go out and cause an auto accident.

For more information contact a Tyler Drunk Driver Auto Accident Attorney today.

Texas parents have a right to bring a Wrongful Death and Survival Claim pursuant to Texas Civil Practice and Remedies Code Chapter 71 for the loss of an unborn child. The recoverable damages are no different than are recoverable for the death of a child.

However, Texas Civil Practice and Remedies Code § 71.003 and the case law interpreting §71.003 excludes medical malpractice from the application of the statute. In order for a healthcare provider to be held responsible for the death of a fetus the fetus must be born alive else there is no liability. There is no medical liability for malpractice which causes a fetus to be stillborn. The Texas Supreme Court has held in Fort Worth Osteopathic Hospital, Inc. v. Reese, 148 S.W. 3rd 94(Tex. 2004), that prohibiting the parents of a fetus from having a cause of action for the death of the fetus en utero does not violate the equal protection clause of the Constitution.

Parents who have lost an unborn child as a result of negligence or a defect in a product or premises should seek additional information from a Tyler Wrongful Death Attorney.

Avandia is the marketing name of the drug Rosiglitazone patented by the pharmaceutical company GlaxoSmithKline as a drug for the treatment of Type II diabetes. Avandia's side effects are so severe that the Food and Drug Administration (FDA) requires that the drug be accompanied by a "black box" warning advising that Avandia may cause fluid retention which could result in congestive heart failure. The lesser severe, but nonetheless well known, side effects of Avandia include large weight gain in a short period of time, shortness of breath, swollen feet, lower legs, ankles, arms, or hands, dry cough, and fatigue. Studies have shown that Avandia causes a 43% increase in the risk of heart attack, a 27% increase in the risk of stroke, an increased risk of bone fractures in females, and an increase in macular edema which causes retinal damage and partial blindness.

Avandia's side effects have lead to over 13,000 lawsuits against GlaxoSmithKline (GSK). GSK has reached settlement agreements in more than 10,000 of the lawsuits and has agreed to pay more than $500 million dollars in damages. Although Avandia has been withdrawn from the market in New Zealand and has been widely criticized in European countries a 2007 FDA Advisory Panel decided to leave Avandia on the American market.

With the FDA turning a blind eye to the dangers of Avandia users who have suffered complication have little choice but to turn to litigation. For more information about Avandia litigation contact a Tyler Defective Drugs Attorney today.

For a Tyler injury lawyer the Texas Supreme Court's recent decision in Haygood v. De Escabedo creates new issues for which there is no easy answer. Texas Civil Practice and Remedies Code §41.0105 provides that an injury victim may recover accident related medical expenses that are actually paid or incurred. Until last week Texas law provided that a medical debt was incurred at the point that the medical services were rendered in the amount of the medical bill. The Texas Supreme Court has now decided that the amount billed is not the amount "incurred" and that a victim is limited to recovering the total of the amount paid by an insurance company, the amount paid by the victim and the amount outstanding.

Texas statutory and case law provides that a victim may recover reasonable and necessary accident related medical expenses. Texas law contains no evidentiary standards for the admissibility of the amount that a health insurance company paid pursuant to a provider agreement. Such agreements have nothing to do with reasonable and necessary expenses, principals of jurisprudence, or the Texas Rules of Evidence. There are no evidentiary standards by which to measure the validity of health insurance payments. Furthermore, Escobedo clearly states that evidence of health insurance or the amounts written off or adjusted by an insurance company continue to be inadmissible pursuant to the Collateral Source Rule.

Texas Civil Practice and Remedies Code §18.001 provides that reasonable and necessary medical expenses may be proved up by affidavit. Health care providers across Texas have, and will continue, to argue that the amount that they bill patients for their services are both reasonable and necessary. However, Escobedo specifically held that these reasonable and necessary medical bills are neither admissible nor recoverable, arguably invalidating Section 18.001. The Texas Supreme Court has held that only the amount paid is recoverable.

The Texas Supreme Court's perversion of Texas law in Haygood v. De Escabedo has likely created more uncertainty than it resolved.

For more information contact a Tyler Accident Attorney today.

As a Tyler injury lawyer I have struggled with how to apply §41.0105 of the Texas Civil Practice and Remedies Code in a way that is both consistent with the language of the statute and the conflicting interpretations of the Texas appellate courts. That struggle came to an end last week when the Texas Supreme Court delivered its opinion in Haygood v. De Escobedo.

In 2003 the Texas legislature enacted §41.0105 of the Texas Civil Practice and Remedies Code which provided that the "recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant." The Texas Supreme Court in Escobedo held that the statute limits the evidence at trial to the recovery of medical expenses which the provider "has a legal right to be paid." The court's ruling creates a windfall for negligent wrongdoers and their insurance companies at the expense of the victims.

Haygood v. De Escobedo involved an auto accident which occurred when Escobedo backed her minivan out of a parking lot causing a collision with Haygood's car. Haygood sustained serious injuries to his neck and shoulder which required surgeries at a total medical expense of $110,069.12. Haygood was covered by Medicare. After adjustments and reductions Haygood's medical expenses were reduced to $27,739.43. At trial Escobedo sought to exclude evidence of Haygood's medical expenses in excess of those amounts paid or to be paid by Medicare. Pursuant to the Collateral Source Rule Haygood sought to admit the full amount of his medical expenses. The court admitted all of Haygood's medical expenses and the jury awarded $110,069.12 for past medical expenses.

The Collateral Source Rule prohibits the admission into evidence of payments by third parties on behalf of the plaintiff. "The theory behind the Collateral Source Rule is that a wrongdoer should not have the benefit of insurance independently procured by the injured party, into which the wrongdoer was not privy." The Texas Supreme Court held that the reductions in the medical charges by a collateral provider such as Medicare were somehow magically not part of the Collateral Source Rule and that the tortfeasor, and more importantly its insurance company, were thus entitled to the benefit of the victim's insurance.

The Supreme Court acknowledged that the Collateral Source Rule provides that a benefit that is directed to the injured party should not be shifted so as to become a windfall for the tortfeasor then illogically leaps to the conclusion that to allow a tortfeasor the benefit of the victim's collateral source reductions does not create a windfall. In conclusion, the Texas Supreme Court stated, "Of course the Collateral Source Rule continues to apply to such expenses, and the jury should not be told that they will be covered in whole or in part by insurance. Nor should the jury be told that a health care provider adjusted its charges because of insurance."

For more information contact a Tyler Auto Accident Attorney.

Texas has certainly had more than its share of drunk drivers, so much so that drunk driving deaths and injuries caused the formation of the Dallas based Mothers Against Drunk Driving (MADD), but drunk driving affects other states as well. According to Maryland motor vehicle statistics Maryland has 25,120 residents with three or more DUIs and an incredible 3980 residents with five driving while intoxicated convictions.

Texas studies have repeatedly shown that most drunk drivers are not arrested until they have driven under the influence of alcohol many times and continue to drive drunk after the first conviction. Maryland's experience with repeat DUI offenders underscores the need for certain and severe consequences after the first or at most the second offense.

For more information contact a Tyler Drunk Driver Auto Accident Lawyer.

Governor Rick Perry signed into law his Omnibus Tort Reform Bill best known for its anti-consumer Loser Pay provisions.

The version of HB 274 that was signed into law is substantially different from the original bill. At the outset the most notable of the Loser Pay provisions were that Loser Pay did not apply unless invoked by the defendant and that if a settlement offer was rejected by a plaintiff who thereafter received a judgment for substantially less than the settlement offer then the plaintiff would be responsible, without limit, for the defendant's attorney's fees and expenses incurred after the rejection of the settlement offer. The latter provision could potentially create a situation where the plaintiff could file a meritoriously claim, prevail on the claim, and obtain a verdict against the defendant, but because the verdict was in an amount less than the settlement offer and the defendant's attorney's fees and expenses incurred after the settlement offer exceeded the amount of the verdict plaintiff could end up prevailing at trial yet owing the defendant money. No one but an insurance company would think that this result was fair or just. This provision was removed from the version of HB 274 which was signed into law.

Loser Pay must still be invoked by the defendant. This allows defendants to use Loser Pay as a strategic tool. Defendants can invoke Loser Pay only in those cases where they have a chance of winning and refuse to invoke Loser Pay in those cases where they have asserted frivolous defenses and are using litigation as a means of spending the victim into submission. HB 274 also increases the amount that a defendant can recover in attorney's fees and expenses up to the total amount of the plaintiff's recovery. It is difficult to predict the effect that HB 274 will have in practice. Because the Loser Pay provisions of the Civil Practices and Remedies Code Section 42 apply to both plaintiff and defendant once invoked by the defendant it is unlikely that defendants will be willing to open that can of worms at the courthouse.

For more information contact a Tyler Injury Attorney.

The consumer protections set out in the Deceptive Trade Practices Act seem to have escaped notice in a session of the Texas Legislature otherwise notable for corporate and insurance friendly changes to Texas law. The DTPA continues to authorize economic damages, mental anguish, treble damages, costs and attorneys' fees based upon a finding of a false, misleading or deceptive trade practice. If the Defendant's violation of the DTPA is found to be committed "knowingly" then the jury may award additional damages up to three times the amount of the economic damages. If the jury finds that the Defendant's violation of the DTPA was "intentional" then the additional damages may be in an amount not more than three times the economic and mental anguish damages. Although the Act has undergone a number of changes including exempting personal injury and medical malpractice claims from the Act in continues to be a powerful consumer protection tool.

For more information contact a Tyler Deceptive Trade Practices Attorney.

Texas auto accident claimants must be familiar with the special rules and notice provisions which apply to governmental units if their car wreck was caused or contributed to by an auto owned by the such a unit. Most people in Texas have the general understanding that if someone causes a car wreck the innocent driver has two years in which to bring a claim. While this is generally true there are exceptions and the effect of the exceptions can be brutal. Many times I have been contacted by new clients who spent the first year after their accident trying in vain to handle their own auto accident claim. This is fine in many cases. However, in a case involving an at-fault driver who was acting in the course and scope of their employment by a municipality it may be too late.

Texas Civil Practices and Remedies Code Section 101.101 provides that a governmental unit is entitled to receive certain specified notice within six months of the occurrence. So if a claimant reads Section 101 and gives notice within six months have they preserved their claim? The answer is, "Maybe." Section 101 specifically ratifies city charter and notice provisions and the claimant must look to the provisions of the governmental unit which employed the at-fault driver. These provisions are usually buried somewhere in the unit's charter or ordinances. Some units have much shorter notice periods and shorter notice periods have been specifically approved by the caselaw.

Claimants or injury lawyers making a claim against a governmental unit should be aware of the specific notice provisions of that unit or the case may literally be over before they know it.

For more information contact a Tyler Auto Accident Attorney today.

Texas employers who are subscribers to the workers' compensation program are still nonetheless liable for punitive damages in connection with the death of an employee upon a showing of gross negligence. Although being a subscriber gives an employer limited immunity from the ordinary negligence claims of their employees that immunity does not extend to liability for intentional acts or gross negligence which results in the death of an employee.

Texas Labor Code Section 408.001 provides that the spouse and "heirs of the body" of a deceased worker have a right to bring a claim against an employer with workers' compensation insurance for punitive damages. In order to be successful the spouse and heirs must show that the conduct of the employer created an extreme risk of harm to the employee, that the employer had actual subjective awareness of the extreme risk created by their acts and/or omissions, and that the employer was consciously indifferently to that risk. Because workers' compensation coverage provides lost wages and medical benefits and a gross negligence claim seeks punitive damages the two claims are deemed not to be in conflict with one another and both claims may be pursued. Injured workers would be well advised to contact a Texas workers' compensation attorney.

If a Texas employer elects not to purchase workers' compensation insurance then the employer is a "nonsubscriber" and does not have the immunity granted by the program. Nonsubscriber employers lose the right to assert the common law defenses of assumption of the risk and contributory negligence. Furthermore, nonsubscribers are subject to Wrongful Death and Survival claims pursuant to Chapter 71 of the Texas Civil Practices and Remedies Code.

For more information contact a Tyler Wrongful Death Attorney today.