Texas Injury Lawyer Blog

It's not uncommon in the course of handling personal injury cases to run across important witnesses who are reluctant or simply refuse to testify. Even a witness subpoena does little to solve the problem of the eyewitness who decides to have a memory lapse. We ran across such an adverse witness recently in an auto/truck collision case. An 18-wheeler driver was sitting in the left turn lane in the early morning hours waiting on a left turn arrow when another trucker made an illegal left turn from the right through lane and collided with a passenger car. The college student in the passenger care was severely injured and semi-conscious at the scene. The 18-wheeler driver left the scene before the police arrived but not before being seen by passersby. The negligent truck driver reported to the police that he was making a legal left turn on a left arrow and that the accident was caused by the college student.

When our private investigator located and interviewed the 18-wheeler driver that had witnessed the accident the driver refused to give a statement and stated that if subpoenaed he would not remember anything. When pressed he stated that he was simply "not going to hang another trucker out to dry".

Witnesses can be impeached with their prior inconsistent statements. Texas Rule of Evidence 613(a) provides that before a witness may be impeached he must be told the contents of the prior statement and given an opportunity to explain or deny the statement. In our case the 18-wheeler driver could be called to testify and questioned in detail regarding his statement the he was not going "to hang another trucker out to dry." If he admitted the statement then he would not be further impeached. If he denied the statement then the evidence cases provide that he may be impeached by any competent evidence or witnesses. In our case the private investigator would be called to testify as to the prior statements. Either way the effect on a jury would be obvious.

The Texas Tort Claims Act as codified in the Texas Civil Practices and Remedies Code first gives school districts a broad grant of immunity from tort claims then sets forth certain limited exceptions to that immunity. Section 101.021 of the Civil Practices and Remedies Code provides that a governmental unit may be held liable for personal injuries or wrongful death if the injuries resulted from the negligent operation of a motor vehicle by an employee of a governmental unit acting in the course and scope of their employment. Section 101.001(3)(B) provides that a school district is a governmental unit within the meaning of the statute.

Section 101.023 of the Texas Civil Practice and Remedies Code sets damages caps for different types of governmental units. Claims against the state government are subject to a limitation of liability of $250,000 for each person and $500,000 for each single occurrence. The liability of a unit of local government is limited to $100,000 per person and $300,000 per occurrence. A school district is a unit of local government.

Section 101.101 provides for special notice provisions which require strict compliance. School districts are entitled to receive notice of a claim within six months of the injury producing accident. The notice must reasonably describe the alleged injury, the time and place of the incident, and the incident. Practitioners would be well advised to send a certified notice letter to school district superintendant at the first opportunity.

Section 101.106 sets forth so-called election of remedies provisions which could easily cause the unwary practitioner to unwittingly waive a portion of a claim.

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.

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.

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.

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 drunk drivers continue to have one of the highest incidences of drunken driving in the nation. Texas' history of drinking and driving is long standing. In the face of an epidemic the Mothers Against Drunk Driving (MADD) was formed in the 1980s with its national headquarters in Irving, Texas. MADD has worked tirelessly to increase the awareness of the dangers of drunken driving, stiffen the criminal penalties for drinking and driving, and focus more resources and attention on prosecuting alcohol related traffic offenses. After almost 30 years of diligent effort the current statistics are a little discouraging.

Although some improvement in the numbers of drivers killed in alcohol-related motor vehicle accidents has been reported the decrease is a little misleading. Cars are much safer than they were 30 years ago largely due to the relentless efforts of products liability lawyers. Thus any decrease in the number of motorists killed in alcohol-related crashes may be solely due to safer cars.

According to the 2009 National Highway Traffic Safety Administration Report 10,839 people were killed in accidents caused by a driver with a blood alcohol level (BAC) of great than .08%. Texas is the clear frontrunner in alcohol-related fatalities with 1,463 deaths, followed by California and Florida with 1,198 and 1,041 deaths, respectively. An accident is "alcohol-related" if one of the non-passengers has a BAC of .01 % or higher. A driver is "alcohol-impaired" if he has a BAC of .08% or higher. Using the higher alcohol-impaired standard Texas still leads the nation with 1,269 alcohol-impaired motor vehicle fatalities, followed by California with 1,029 fatalities. Unfortunately, this means that in Texas alone between 3 and 4 people lose their lives each day in an alcohol-impaired motor vehicle accident.

According to MADD:

One person will die every 50 seconds in a drunk driving crash;

On average a drunk driver is arrested the 87th time that he drives drunk;

One third of the population will be involved in an alochol-related crash at
some point in their lifetime;

Most drivers convicted of a DWI continue to drive even after their driver's license has been taken from them.

Texas has taken steps in the right direction to address the problem of drunken driving but stiffer penalties and more aggressive prosecution are needed.

For more information contact a Tyler Auto Accident Attorney today.

Tylers' texting drivers that cause auto accidents are guilty of both negligence and gross negligence. Personal injury attorneys that handle auto accidents need not wait for the passage of new laws specifically addressing texting related auto accidents. Texting falls squarely within the boundaries of existing Texas law.

Studies have concluded that texting while driving is as much as twenty times more dangerous as driving while intoxicated. A credible argument can be made that a texting driver is more deserving of punishment than a drunken driver. An intoxicated driver consumes alcoholic beverages and with judgment impaired by alcohol makes the decision to drive. Contrast the drunken drivers' behavior with that of the texting driver who with a clear mind makes the decision to take their attention off of the roadway and to focus on texting while operating a motor vehicle.

Chapter 545 of the Texas Transportation Code defines reckless driving as willful and wanton conduct. Certainly the texting driver has exhibited a willful and wanton disregard for the safety of the motoring public. There is not a driver on the Texas roadways who has not been warned against texting while driving yet texting continues to be an increasing cause of auto accidents.

My law firm files all texting related auto accident cases as both negligence and gross negligence cases and requests that punitive damages be awarded against the texting driver.

For more information contact a Tyler Auto Accident Attorney today.

Texas continues to have one of the worst drunken driving problems in the nation. According to a 2009 Texas study approximately 40% of all fatal crashes involved alcohol. The National Transportation Safety Board recently reported that Texas falls in a group of ten states that have done the least to address the problem of alcohol related fatalities. Texas' drunken driving problem is a long standing problem that gave birth to Texas based Mothers Against Drunk Driving. MADD has called significant attention to the problem which nonetheless persists.

Texans' love affair with drinking and driving has a long history and old habits die hard. Up until about 20 years ago it was perfectly legal in Texas to drink and drive as long as the operator of a motor vehicle was not legally intoxicated. Although the consumption of alcohol beverages while operating a motor vehicle on a public roadway is now illegal and the level for legal blood-alcohol levels has been reduced from 0.10 to 0.08 many Texans continue to drink and drive. Lowering the legal blood-alcohol level will have no appreciable effect upon the problem. Many of the alcohol related fatal crashes are caused by drivers with blood-alcohol levels of greater than 0.15%.

Texans drink and drive because they don't believe that they will be caught. Likewise, increasing the penalties for drinking and driving is unlikely to have any appreciable effect. Drivers that do not believe that they will be caught are not concerned about the severity of potential punishment because they simply don't believe that they will face punishment.

Certainty of punishment is more likely to have a deterrent effect. Measures that are reasonably calculated to apprehend, charge, and convict more drunken drivers are needed to curb this growing problem.

For more information contact a Tyler Car Wreck Lawyer today.

Most Texas automobile liability insurance policies include a family member exclusion which excludes liability coverage for any claim made by a family member against a family member. The insurance companies argue that providing coverage for claims by family members against family members would encourage fraud and collusion. Insurance companies suggest that a parent might intentionally cause an accident and injure their child in order to give their child an opportunity to make a claim under their insurance policy. However, the more likely motivation for the family member exclusion is simple greed. Far and away the most likely person to be injured by a family member while operating a motor vehicle is another family member. In typical fashion the insurance companies have attempted to avoid coverage for the single largest group of persons who might need coverage.

The family member exclusion is in direct conflict with the Texas Motor Vehicle Safety-Responsibility Act which requires all drivers to have public liability insurance in the minimum required amounts. The current minimum required amounts are $25,000.00 per person, $50,000.00 per accident, and $25,000.00 in property damage coverage. The Texas Supreme Court in National County Mutual Fire Insurance Company v. Johnson saw through the insurance industry's claimed justification for the family member exclusion and held that the family member exclusion conflicted with the Texas Motor Vehicle Safety-Responsibility Act, had no rational justification, conflicted with Texas public policy, and failed to serve the interests of the citizens of Texas. The Texas Supreme Court held that the family member exclusion was void to the extent that it reduced the available coverage below the minimum required by Texas law.

The fact that the family member exclusion is invalid has not stopped insurance companies from including it in their policies or insurance adjusters from telling claimants that there is no coverage for injuries to family members. It is important that Texans be knowledgeable regarding their insurance in order to combat fraud by insurance companies.

For more information contact a Tyler Car Wreck Attorney today.

Texans who are injured by negligent drivers may be covered by both the negligent driver's automobile liability policy and by policies in the name of other members of the negligent driver's household. Virtually all Texas automobile liability policies include definitions which create "omnibus insureds" or insureds by definition. Most Texas automobile insurance policies include a provision which provides that the policy covers not only the named insureds but also all relatives of the named insureds who are also a member of the named insured's household.

For more information contact a Tyler Auto Accident Attorney today.

For more information contact a Tyler Auto Accident Lawyer today.

Consider the following scenario. Uncle Charles goes through a divorce and while he is getting back on his feet moves in with his brother's family. The brother's automobile liability insurance policy has a provision that includes coverage for any relative who is also a member of the named insured's household. Thus Uncle Charles becomes an omnibus insured or insured by definition even though Uncle Charles maintains his own separate automobile liability insurance policy.

Uncle Charles then goes out and causes an accident in which the victim sustains personal injuries which exceed the limits of Uncle Charles' insurance policy. Because Uncle Charles is an omnibus insured under his brother's policy, his brother's policy acts as excess insurance and provides coverage for the accident.

The flip side of this scenario is that if you are involved in an automobile accident and sustain personal injuries and damages which exceed the at-fault driver's insurance you also need to determine whether the at-fault driver's household includes relatives which have separate automobile liability insurance which may provide coverage for your accident.

For more information contact a Tyler Auto Accident Attorney today.