Texas Injury Lawyer Blog

When I tell my personal injury clients that the jury won't know that the Defendant is covered by liability insurance most of them look at me like I have three eyes. That's right, in Texas any mention of liability insurance during a jury trial will result in a mistrial and possible fines. Not only are the litigants prohibited from mentioning liability insurance they also must for all intents and purposes lead the jury to believe that the individual Defendant will have to personally pay the judgment. This is a law which was procured and is protected by the Texas insurance lobby. The theory behind the law is that if a jury knew that there was liability insurance covering an accident victim's injuries the jury would be more likely to fully and fairly compensate the victim. The insurance companies hope that by forcing the litigants to pretend that the at fault party will have to personally pay the judgment the jury will feel sympathy for the Defendant and reduce the amount that they award. This way the insurance companies can legally get by with paying less than they owe. No, it's neither fair nor just but it is Texas law.

Even Louisiana, which is often ridiculed in the legal world for having archaic laws, has passed a direct action statute pursuant to which the liability insurance company, which is the real party in interest, is made a party to the lawsuit when one of their insureds causes an accident. The fact that Texas continues to allow liability insurance companies to hide behind their insureds and deceive juries is a testament to the unchecked power of the Texas insurance lobby. Until Texas finds a way enact legislation without the corrupting influence of the liability insurance lobby we will continue to have laws that serve no purpose but to line the corporate coffers of the insurance companies.

For more information contact a Tyler Personal Injury Attorney today.

Texas wrongful death laws are leftovers from a different time and fail to address modern day family relationships. Texas Civil Practices and Remedies Code Chapter 71 limits the right to make a claim for the loss of a loved one to the parents, spouse and children of the deceased accident victim. Although this type of statutory construction may have covered all of the aggrieved family members a hundred years ago it doesn't come close today.

Take for example the typical blended family created when a mother of two young children who have had little or no contact with their biological father marries. The new husband is the only real father that the children have ever known yet as stepchildren when he is tragically killed by a drunk driver the children have no right to make a claim for wrongful death damages. Or consider the situation of two people who have both been through vicious divorces and having been burned decide to live together, permanently, while maintaining their separate identities. While for all practical purposes they are married, because they do not intend to be married and do not hold themselves out to the general public as married their relationship does not constitute a common law marriage. Twenty years later when one of them gets run over by an 18 wheeler the other has absolutely no right to make a claim under the Texas Wrongful Death statutes.

The statutory definition of Wrongful Death claimants should be expanded to include stepchildren and other persons who can establish a direct economic dependence upon the deceased accident victim.

For more information contact a Tyler Wrongful Death Attorney today.

Accident victims who have health insurance often get victimized a second time by health insurance company subrogation. What is subrogation? Subrogation is the right of a health insurance company to recover payments made for accident related health care expenses. But why should a health insurance company get their payments back? They were paid a premium to provide the coverage and pay the accident related medical expenses. They didn't hire an attorney or help get a recovery. They're not going to give you your premiums back. The theory behind health insurance subrogation is that your health insurance will pay for your accident related medical expenses up front but they get their money back if you recover money damages from the negligent party because theoretically when you recover personal injury damages in Texas one of the things you are recovering is the medical bills that your health insurance company has already paid. The reason that you don't get your premiums back is because supposedly the health insurance company charged you a lower premium knowing that they were going to get some of their medical payments back in liability cases. If you believe that this blog is probably over your head.

Two Texas common law doctrines, the "made whole" and the "common fund" doctrines, have, until recently, softened the impact of health insurance subrogation. The made whole doctrine stood for the principle that because a health insurance company had been paid a premium to pay health insurance benefits they could only recover their payments after the victim had recovered all of their damages and had thus been "made whole". The health insurance company fed last so to speak and had been paid to take the risk that there just wouldn't be enough money to go around.

The "common fund" doctrine provides that because the health insurance company is seeking to recover their subrogation interest out of a common fund created as a result of the expenditure of attorney's fees and expenses that they must pay their proportionate share of the attorneys fees and expenses. The common fund doctrine thus prevented the health insurance company from getting a free ride at the expense of the victim.

Unfortunately, as a result of intense political pressure from health insurance companies, Texas courts have all but eliminated both the made whole and the common fund doctrines. This often produces extremely inequitable results. Take for example the situation of the accident victim who has huge medical bills and is permanently disabled in an auto accident that was caused by a drunk driver with only $25,000 in liability insurance. The health insurance company that has been charging exorbitant health insurance premiums can, and usually does, take the entire liability policy proceeds and leave their disabled insured with nothing.

For more information contact a Tyler Auto Accident Attorney today.

Texans who get injured as a result of the negligence of the owner or operator of a business premises find themselves having to overcome high hurdles in order to be compensated for their injuries. The victim must first prove that they were the "business invitee" of the Defendant. This requires proof that the injured person was on the business premises in furtherance of the business purposes of the business entity. Establishing that the injured was a business invitee is usually the least of the victim's problems.

Next the injured customer must prove that they were injured by an unreasonably dangerous condition or "defect" in the premises and that the business knew or in the exercise of reasonable diligence should have known of the existence of the defect and failed to either correct the defect or warn its customers of the defect. Whether the condition constitutes an unreasonably dangerous defect turns on what the ordinary customer would reasonably expect and appreciate under the circumstances. For example, the ordinary customer would reasonably expect that the accumulation of ice on a sidewalk during a Texas ice storm would be slippery and thus the condition does not constitute a premises defect even though it is obviously dangerous. By contrast, invisible "black ice" may result in liability if the injured customer can show that the business owner was on notice of the condition.

Texas' conservative courts have expanded the notion that ice may not constitute a premises defect to other accumulations of natural substances to the point that circumstances involving accumulations of mud and rainwater have been held not to be premises defects. The analysis of the condition of a business premises is complicated by the fact that a business owner owes no duty to correct or warn of an "open and obvious" defect. Thus injured customers find themselves arguing that the owner should have known of a condition or defect while at the same time arguing that it was hidden as far as the customer was concerned. Customers injured by malfunctioning equipment or the design of the premises are more likely to be successful. Customers injured by foreign substances such as spills may have a difficult time placing the owner on notice of the defect.

Studies have consistently shown that the business wins premises liability cases 80 -90% of the time. Nonetheless, we are almost always successful in premises cases. I usually approach these cases by asking my client to tell me what the business did wrong that caused their injuries. If the victims can show the jury in simple terms what the business did wrong and how that caused the injuries the victim will usually prevail.

For more information contact a Tyler Premises Liability Lawyer today.

I'm often asked if someone who has been in an auto accident needs to hire an attorney or whether they might be able to handle the matter without the assistance of an attorney. Unfortunately, the answer is that only someone who has experience with the personal injury claims process should attempt to handle an auto accident claim without the assistance of an attorney. Why? I often tell my clients that what I do is not always difficult but that knowing what do is extremely difficult.

Does the negligent driver's insurance company have to give you a rental car? Can you make the negligent driver's insurance company total your vehicle or do you have to have it repaired? Should the liability insurance company pay for your medical bills or should you file them on your health insurance? Do you get to choose your own doctor? Can you use both your Personal Injury Protection benefits and your health insurance? Why should you use your health insurance if the other driver caused your injuries? Why do you have to pay your health insurance company back if you settle your injury case? Will the health insurance company give you your premiums back if they get their money back? Should you wait until you finish your medical treatment before you make a settlement demand or should you try to settle now? Can you settle your auto accident claim now and still make the insurance company pay for your accident related medical treatment in the future? What is a reasonable settlement amount for your personal injury claim? What are your options if the other driver doesn't have enough insurance to cover your injuries or even worse doesn't have any insurance at all?

These are all common issues that arise in an auto accident case. If you know the answer to these and dozens of other questions about auto accidents and personal injury claims then you may want to take a shot at handling your own case. Otherwise, you will need the assistance of an injury attorney or you will get skinned by an insurance adjuster who deals with these issues on a daily basis.

For more information contact a Tyler Car Wreck Lawyer today.

Chapter 55 of the Texas Property Code gives a hospital that provides emergency medical care to an uninsured accident victim a lien upon the liability insurance of any negligent individual who caused the accident and resulting injuries. Sounds good so far. If you show up at a Texas emergency room within 72 hours of an accident in need of emergency medical care the hospital must treat you regardless of your ability to pay for the accident related medical treatment. In exchange for this obligation to render emergency medical care to accident victims the hospitals received the right to file a Chapter 55 lien against applicable liability insurance. Still sounds okay. The problems arise from the affect of the lien on individual patients and the way in which some hospitals abuse the lien law.

Chapter 55 gives the hospital a lien in the amount of the "usual and customary" charges for the emergency medical services. Therein lies the source of the problem. Most hospitals "usually and customarily" charge several times the amount that most in the medical profession would consider reasonable. In fact, studies published in reputable medical journals have repeatedly concluded that hospital emergency rooms regularly charge approximately 250% of the reasonable amount. The problem is so rampant that the inflated rate has become the "usual and customary" rate. This results in a huge windfall to the hospital when it renders medical care to an accident victim whose circumstances are covered by liability insurance. The hospitals argue that they must recover this inflated amount when there is liability insurance to offset the many instances where they render emergency medical care without compensation. While this argument makes sense system wide it is small consolation to the Texas auto accident victim who is injured by a negligent driver covered by a Texas $25,000 minimum limits policy and receives $10,000 worth of emergency medical care only to see the hospital file an inflated hospital lien in the "usually and customary" amount of $25,000 and take the entire liability policy proceeds.

The problem is further aggravated by the practice of many hospitals to refuse to bill the private health insurance of auto accident victims in hopes of recovering inflated charges by filing a hospital lien. Chapter 146 of the Texas Practices and Remedies Code requires hospitals to bill the private health insurance of auto accident victims and provides penalties for the failure to do so. Nonetheless, many Texas hospitals knowingly continue to file their inflated liens and refuse to bill the private health insurance of auto accident victims with no excuse or justification other than naked greed. Only when the exasperated auto accident victim hires an attorney and presses the hospital will many hospitals release their inflated liens and file on the patients' private health insurance as required by law.

For more information contact a Tyler Injury Attorney today.

Texas truck accidents often draw the attention of ambulance chasing attorneys and their so called investigators. Commercial trucks are often huge, cause severe personal injuries and death, and are usually covered by large liability insurance policies. This combination often attracts the attention of unscrupulous attorneys who ignore Texas criminal laws and State Bar ethics rules in hopes of making a substantial fee. East Texas has a growing problem with ambulance chasing lawyers. These unscrupulous lawyers and their so called investigators call your home, show up on your front porch, and walk into your hospital room, uninvited, after you've been in an accident and try to persuade you to hire them. They solicit accident victims at a time when the victims are most vulnerable.

Texas Penal Code Sec. 38.12 makes it a felony for a lawyer, law firm, or a representative of a lawyer or law firm to contact, in person or by phone, an accident victim for the purposes of legal representation if the victim has not first requested the call or personal visit. State Bar Rule 7.03 makes such solicitation an ethical violation. A contract that was illegally obtained is voidable at the election of the victim and completely unenforceable. Thus a truck accident victim who has an attorney or investigator show up in his hospital room or at his home and persuade him to sign a contract may void the contract at any time and not pay the lawyer anything.

An attorney that has to resort to breaking the law and violating State Bar rules in order to get clients is not who you need handling your legal matters. These attorneys usually can't get clients honestly for a reason. If you or anyone that you know has been solicited by a lawyer or investigator you should immediately report the matter to the State Bar of Texas at 1-800-932-1900.

For more information contact a Tyler Truck Accident Attorney today.

Texas uninsured motorist laws assume that if an unidentified motorist causes an accident and flees the scene that the vehicle is uninsured. However, Texas uninsured motorist claims arising out of auto accidents in which the at fault vehicle flees the scene without being identified require at a minimum that there be contact with the at fault vehicle. Insurance companies argue that requiring contact is the only way to separate the case of an unidentified vehicle which causes an accident and flees the scene from the situation where a driver simply loses control of their vehicle and causes a one car accident. I have jokingly told my clients that if they are going to get run off the road that they shouldn't go without a fight else their uninsured motorist insurance carrier will accuse them of causing a one car accident.

Admittedly, the excuse of many drivers in East Texas who simply lose control of their vehicle and run off the road seems to be either "a deer ran across the road in front of me and I swerved to miss it and lost control" or "someone ran me off the road and didn't stop and I didn't get their license plate". If you get run off the road in Texas you're going to have to either identify the other vehicle or have physical damage to your vehicle from contact with the other vehicle or you are not going to be able to assert an uninsured motorist claim.

This contact doctrine has been expanded in recent years to preclude claims caused by cargo falling from another vehicle which did not stop and remains unidentified. If a refrigerator falls off of a delivery truck mangling you and totaling your vehicle you are out of luck on your uninsured motorist claim unless you can identify the other vehicle. This result seems unfair if the goal of the contact doctrine is to eliminate fraudulent allegations about phantom vehicles causing accidents and only makes sense when viewed in light of the insurance industry's overall goal of sounding reasonable while finding ways to deny your claim.

For more information contact a Tyler Auto Accident Attorney today.