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 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.

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.

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.

Bystander recovery claims are claims for negligent infliction of mental anguish which are available under Texas law to a limited class of persons who contemporaneously witness the serious injury or death of a loved one. The three main elements of a bystander recovery claim are as follows:

1) The claimant must show that they were at or reasonably near the scene of the accident as opposed to some distance away. With the rapid advance of modern technology and the increase in remote monitoring and imaging it is easy to imagine how a family member might inadvertently view the injury or death of a loved one from distances as far away as a foreign country. These situations are unlikely to meet the location requirement of a bystander recovery claim.

2) The bystander recovery claimant must show that he experienced shock and emotional trauma from a contemporaneous perception of the accident as opposed to learning of the accident and purposely traveling to the scene of the accident. Good examples of qualifying contemporaneous perceptions are when a parent witnesses a child being struck and killed by an automobile, a wife who is a passenger in an automobile being driven by her husband witnesses the death of her husband during the accident, or a family member happens upon an accident unknowingly only to realize that they are viewing the death of a loved one.

3) The bystander recovery claimant must show that they were closely related to the victim. The relationship requirements in a bystander recovery claim are less strict than in a wrongful death claim. Texas wrongful death claimants are limited to parents, spouses, and children. The class of persons entitled to make a wrongful death claim is limited and the applicable statute is very narrowly and strictly construed. The right to make a wrongful death claim does not turn upon the claimant's relationship with the deceased. Even estranged family members who fall within the statutory definition of wrongful death claimants have a right to make a wrongful death claim. By contrast, the right to make a bystander recovery claim depends in part upon the extent of the relationship between the claimant and the injured or deceased victim. Parents, spouses, children, step-parents, step-siblings, grandparents, and other persons who have long standing familial type relationships with the injured or deceased victim have been found by Texas courts to have a right to make bystander recovery claims.

Bystander recovery claims are important even to persons who have a right to make a wrongful death claim because of their insurance coverage implications. Many Texas insurance policies have per person limits. These per person limits limit the amount of insurance available to any single injured person and include in that limit the claims of persons making derivative claims such as wrongful death claims. However, under Texas law a bystander recovery claim is an individual, free standing tort claim and gives rise to an additional per person insurance limit. For example, a common Texas insurance policy is one which provides $100,000.00 in liability coverage per person and $300,000.00 in total coverage per accident. If a drunk driver crosses the center line of a highway and kills a husband but causes no significant physical injuries to his wife who was a passenger in the vehicle then the husband's claim together with the wife's wrongful death claim is limited under Texas law to one per person policy limit in the amount of $100,000.00. However, because the wife can satisfy the three bystander recovery claim requirements she is also entitled to make an individual claim for bystander recovery for contemporaneously witnessing the death of her husband. This bystander recovery claim qualifies for an additional per person limit of liability thus doubling the amount of the available insurance coverage from $100,000.00 to $200,000.00.

Texans who witness the serious injury or death of a loved one would be well advised to investigate the possibility of a bystander recovery claim.

For more information contact a Tyler Wrongful Death Attorney today.

Texas spouses, children, and parents have a right to bring a claim under Texas law for the wrongful death of a loved one. Texas wrongful death claimants have a right to bring a claim in connection with the loss of a family member for pecuniary loss, loss of companionship and society, mental anguish, and loss of inheritance. Pecuniary loss is defined as the loss of care, financial support, maintenance, services, guidance and other contributions of a pecuniary value not including the loss of inheritance. Loss of companionship and society is the loss of the care, comfort, society, love and emotional support resulting from the loss of a loved one. Mental anguish is the emotional suffering, pain and torment that results from the death of a loved one. In evaluating loss of companionship and society and mental anguish in connection with the loss of a spouse the couple's living arrangements, relationship, common interests and activities are all taken into account. Similar factors are considered when evaluating these claims by parents and children.

Loss of inheritance is the net present value of the amount of assets or investments that the deceased would have in probability added to the estate and left at natural death to the surviving heirs. This element of damages varies greatly from case to case. High wage earners often accumulate substantial estates, particularly during the later years of their careers, and their early demise results in a large amount of damages for loss of inheritance. On the other hand, low wage earners often consume all of their income resulting in no calculable loss of inheritance damages. Texas wrongful death damages are individual in nature and are submitted to the jury separately.

Texas survival damages are the traditional personal injury damages suffered by the decedent prior to death. Upon death these damages become a right or asset of the deceased's estate and are asserted by the representative of the estate. These damages also vary greatly. In situations where the victim died instantly or with no knowledge of the event which caused their death these damages are smaller. On the other hand, in situations such as with cancer where the victim dies a long, slow, painful and very expensive death the survival damages can be huge.

For more information contact a Tyler Wrongful Death Lawyer 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.