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.

Personal injury damages are generally not taxable. The notion is that when an injury victim sustains damages as a result of the tortuous conduct of another and subsequently obtains a recovery of personal injury damages that they are merely recouping a loss. The recovery of this loss does not result in any new income or increased benefit to the victim and they have simply been made whole or put back in the same position that they were in before the injury. Thus there is no taxable event. This is the general rule and as with all general rules there are exceptions.

Internal Revenue Code §104(a)(2) generally excludes from gross income all amounts recovered in connection with a personal injury claim. In order to qualify for this IRS exclusion the recovery must be the result of a physical injury and must have been caused by the tortuous conduct of another. In the situation where the tortuous conduct results in physical pain, mental anguish, physical impairment, disfigurement, medical expenses, loss of wage earning capacity, or other traditional elements of Texas personal injury damages then the recovery of those damages is not taxable.

The argument against taxing the recovery of "lost wages" under Texas law has been strengthened by recent legislative changes. Technically, Texas personal injury claimants have historically been limited to recovering "loss of wage earning capacity" rather than "lost wages" and the recovery of loss of wage earning capacity has not been included in taxable income under §104. This position was strengthened in 2003 when the Texas legislature enacted Civil Practice and Remedies Code §18.091. Section 18.091 provided that evidence of loss of earning capacity must be presented to the jury as a net loss after reduction for income tax payments. Thus the recovery of "loss of earning capacity" in Texas is "after tax" and it stands to reason that it would not be included in gross income for IRS purposes.

There are several notable exceptions to the §104 exclusions. Punitive damages are taxable. A claimant who recovers punitive damages is making a recovery over and above the claimant's actual damages and thus the recovery of punitive damages amounts to new income to the claimant and they are appropriately taxable. However, it is important to note an exception to this exception exists in connection with gross negligence claims against employers who have worker's compensation insurance and cause the death of an insured employee. Mental anguish damages which are not accompanied by a physical injury, such as in a case involving the intentional infliction of mental anguish, are taxable. Likewise, lost wages recovered in connection with a breach of an employment contract or an employment discrimination claim are taxable. There are additional less common exceptions.

While the general rule remains that personal injury recovery is not subject to federal income tax treatment the successful personal injury claimant would be well advised to consult with an income tax professional before spending their recovery.

For more information contact a Tyler Accident Lawyer today.

Basic Texas personal injury damages are limited to physical pain and mental anguish, physical impairment, disfigurement, medical care and loss of earning capacity.

There is no exact definition of physical pain or specific evidence required to prove physical pain. A jury has wide latitude on this issue and may simply infer the existence of physical pain in the event of a serious injury. Mental anguish is more than normal concern or worry and requires proof of a high degree of mental pain and anxiety to such an extent that it disrupts the victim's life. Physical impairment damages are separate and distinct from the other elements and address the inability to engage in activities to such an extent that it causes a disruption of the victim's former lifestyle. Physical impairment is distinct from the inability to continue in gainful employment and focuses on disability that results in a substantial disruption of a former lifestyle. Disfigurement, like physical pain, uses the ordinary meaning of the term and is a matter of degree with the jury having broad discretion. Medical care includes the reasonable and necessary medical expenses, both in the past and in the future, required to treat the accident related injuries. Loss of earning capacity is the inability to engage in gainful employment for which one is otherwise qualified. In most cases the amount of the injured person's actual lost wages are submitted to the jury. However, someone who was between jobs, unemployed, on sabbatical, etc. would nonetheless be entitled to recover the reasonable amount of income which they could have earned during the period of accident related disability.

The spouse of an injured person also has a right to make a claim for loss of household services and consortium. Loss of household services includes the loss of domestic services and support. This element of damages is often used to recover additional expenses incurred in the home during a period of disability such as additional maid services. Loss of consortium includes the loss of care, comfort, society, emotional support, sexual relations, and companionship necessary to a successful marriage. While loss of consortium damages are technically available any time a spouse is injured most jurors tend to think that a certain amount of such damages are included in "for better or worse" and thus loss of consortium damages are usually only asserted where there are serious or disabling injuries to a spouse.

For more information contact a Tyler Injury Attorney today.

Texas motorcycle accident victims need more protections. If you hit a pedestrian in Texas you're pretty much in trouble. The notion is that pedestrians are so vulnerable to injury by a motor vehicle that motorists should be extra careful where pedestrians are concerned. Yet motorcyclists are no less vulnerable but the attitudes toward motorcyclists are much different. When a motorcyclist gets maimed or killed many Texans have the attitude that if you ride a motorcycle you deserve what you get. Similarly, there seems to be a feeling in East Texas that all vehicles have the right of way over motorcycles.

Texas is really missing the mark when it comes to motorcycles. Motorcycles are the most fuel efficient single passenger motor vehicles on Texas roadways. With fuel prices having recently set all time highs we should be encouraging and protecting the use of motorcycles. We have special "high occupancy vehicle" (HOV) lanes to encourage car pooling but give no special consideration to motorcycle riders who are far more fuel efficient than a car full of car poolers. Why not allow motorcycles to use the HOV lanes?

Texas also needs stiffer penalties for negligent motorists who cause accidents with motorcycles. While motorcycles are more fuel efficient their riders are likewise more vulnerable and need greater protections. Perhaps criminal penalties similar to those which apply to speeders in school zones would be appropriate. We also need greater civil penalties, such as increased punitive damages, for negligent drivers who cause injuries to motorcyclists. As fuel prices continue to rise motorcycles, as well as tiny fuel efficient cars, are going to become increasingly present on Texas roadways and only with increased protections and awareness are we going to be able to avoid maiming and killing large numbers of the drivers of our most fuel efficient vehicles.

For more information contact a Tyler Motorcycle Accident Attorney today.