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.

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.

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.

Although incorporation provides a substantial amount of insulation to the owners from liability for injury claims the insulation is not absolute. Texas law provides that the owners of a corporation may be held individually liable for the debts and obligations of the corporation in the situation where the corporate fiction is used to perpetrate a fraud, for the owners' benefit, to evade legal obligations, or to circumvent a statute. The corporate veil may be pierced in the situation where the corporate insurance and assets are insufficient to meet the reasonably anticipated debts and liabilities of the corporation.

While the notion that incorporated businesses should be able to attract investors or shareholders without the investors or shareholders being exposed to liability for the day to day operations of the corporation is desirable many have sought to abuse the corporate fiction resulting in the doctrines regarding the piercing of the corporate veil.

Take for example the situation in which a logging contractor holds all of the assets of his business in his individual name and leases them to his incorporated logging business. The contractor then buys minimal or no liability insurance. The incorporated business is both undercapitalized and underinsured in light of the reasonably anticipated risks associated with operating log trucks on the public roadway. In such a situation the corporate veil may be pierced and the individual owner may be held personally responsible for corporate liabilities.

For more information contact a Tyler Injury Lawyer today.

In the case of Irving Holdings, Inc. v. Brown the Dallas Court of Appeals held that Texas Civil Practices and Remedies Code Section 41.0105 is a rule of recovery and not a rule of damages and should be applied after the fact finder's determination of damages based on the claimant's reasonable and necessary medical expense affidavits and after other statutory limitations and/or offsets. In so holding, the Dallas Court of Appeals stated that Section 18.001 affidavits were "sufficient evidence to support a finding of fact by judge or jury that the amount charged was reasonable or that the service was necessary."

By contrast, in the case of Garza de Escabedo v. Haygood the Tyler Court of Appeals held that under Section 41.0105 medical affidavits showing the amount of the medical bills were insufficient evidence as a matter of law to support a medical damages verdict.

Apparently the Texas Supreme Court agrees with the Dallas Court of Appeals Irving Holdings opinion and disagrees with the Tyler Court of Appeals Escobedo opinion as the Texas Supreme Court has denied the petition for review in the Irving Holdings matter and granted the petition for review in the Escobedo matter. Historically, when the Texas Supreme Court grants a petition for review it reverses some portion of the underlying opinion in more than 80% of such instances.

When taken as a whole, these developments suggest that the appropriate method of addressing the paid v. incurred issue is to submit all of the medical bills to the jury and then to reduce the medical damages to the "paid" amount after the verdict and after any other offsets or credits.

For more information contact a Tyler Truck Accident Attorney today.

During the twenty-five years that I have been handling truck accident cases I've run across a number of truck drivers who had exceeded the maximum allowable driving time. Department of Transportation regulations limit a truck driver to a maximum of eleven hours driving and fourteen hours on duty before he must go off duty for a ten hour period of rest. Yet I've never seen a set of truck driver's log books that accurately showed the number of hours that the driver had been on duty when he had in fact exceeded the maximum allowable on duty hours. Proving that a truck driver has actually been driving for more than eleven hours or on duty for more than fourteen hours requires a comprehensive investigation and analysis of many different factors. The investigation starts with the hours that the truck driver will admit that he was driving or on duty. The "on duty" and "off duty" times thereby set the alleged starting and ending point of the day's driving. Then the investigation moves to the identification of activities which can be documented as to time and place. Good examples of this documentation include fuel tickets, traffic citations, toll tickets, toll booth videos, fuel station security videos, delivery receipts, GPS data and cellular phone records. This information is combined with the distance traveled and the posted speed limits along the route traveled. By using this documentation and information to determine the trucker's location along his designated route at various known times it can often be established that the driver necessarily must have been driving in excess of the maximum allowable time. With this information you can prove that the trucker falsified his log books, exceeded the maximum allowable driving hours, and probably committed perjury.

For more information contact a Tyler Truck Wreck Lawyer today.

I frequently run into trucking companies that attempt to call their drivers "independent contractors" in an attempt to avoid liability for a truck accident caused by their truck driver. The trucking company usually has the truck driver sign an agreement stating that the truck driver is an independent contractor. However, a close analysis of the employment agreement and the day to day relationship between the trucking company and the truck driver usually establishes that the truck driver is actually an employee and not an independent contractor. The test for whether or not a worker is an employee of an employer resulting in the employer's legal responsibility for the actions of the employee pursuant to the doctrine of respondeat superior is whether the employer had the right to control the details of the work of the employee. The employer doesn't have to actually control the details of the employee's work. Respondeat superior liability will be established if the employer had the actual right to control the details of the work even though the employer chose not to exercise that right.

The typical independent contractor agreement used by a trucking company states that the driver is an independent contractor but then goes on to give the employer the right to control the details of the work such as:

1. Requiring the driver to accept certain loads;

2. Designating the manner in which the driver loads, unloads, and secures his load;

3. Prohibiting a driver from having passengers in his truck;

4. Requiring the driver to use designated fuel suppliers;

5. Requiring a driver to follow a designated communication schedule or designated communication protocol;

6. Requiring the driver to have a company GPS unit installed in his truck so that the company can monitor the driver's progress;

7. Requiring the driver to adhere to a delivery schedule;

8. Requiring the driver to follow designated delivery routes; and,

9. Prohibiting the driver from hauling loads for other carriers.

After a truck accident trucking companies quickly attempt to use their independent contractor agreements to distance themselves from the driver and his negligent actions. A thorough investigation of the trucking company's right to control the day to day activities of their driver in these situations usually results in the trucking company being found to be the employer of the driver and being responsible for the truck driver's actions.

For more information contact a Tyler Truck Accident Lawyer 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.