Articles Posted in Motorcycle Accidents

Litigation arising from motor vehicle accidents can be much more complex than it may initially seem. Sometimes there are multiple defendants against whom a finding of liability may be sought.

The theories against these defendants may be different. Recently, separate lawsuits were filed against a careless teen driver and his parents, who allowed him to drive alone when he only had a permit rather than a full license.

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The success of any motor vehicle negligence case depends in large part on the facts surrounding the accident and the knowledge and experience of the plaintiff’s counsel. In order to state a claim on which relief may be granted, the injured victim must also anticipate and address any potential defenses that the defendant could assert. Properly assessing one’s case and preparing a strong strategy can make a huge difference in a plaintiff’s recovery. For these reasons, if you have been injured in a car accident, it is vital that you contact an experienced and knowledgeable injury attorney from the local East Texas area as soon as possible.

A recent Texas court of appeals case nicely illustrates the importance of understanding how procedural laws can affect the course of a negligence case. In Northcutt v. City of Hearne, the plaintiff brought a personal injury case against the City (on behalf of the deceased – James H. Bell), seeking wrongful death and survival damages. According to the complaint, the plaintiff alleged that Bell was driving his motorcycle on Highway 79 when an Officer was on the side of the road in a private driveway, setting up a “speed trap.” The Officer turned on his lights and drove onto the shoulder of the road, allegedly causing Bell to swerve to avoid a collision.

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Underinsured/uninsured motorist coverage is coverage which you have the option of buying in order to provide you additional coverage in the event you are injured by a motorist who has insufficient or no coverage. The Texas Financial Responsibility Law only requires that Texas drivers carry the minimum required insurance coverage which provides $30,000 per person and a total of $60,000 per accident in liability coverage. Because it is common for Texas hospitals to charge in excess of $30,000 for an emergency room visit even in cases involving relatively insignificant injuries it is not uncommon for a motorist in even a modest accident to need more than the minimum limits. Furthermore, Texas unfortunately has a large number of people who violate the Financial Responsibility Law and drive uninsured. In both of these situations the victims’ UM insurance kicks in and provides additional coverage. At the point that the victim makes a UM claim then the victims own insurance company in effect becomes the additional insurer of the at-fault driver thus providing additional insurance coverage available to the victim.

UM insurance has a number of characteristics which are different from first party liability insurance. UM insurance does not pay punitive damages. If you are injured by a drunk driver you would and should normally collect punitive damages from the drunk. However, it would serve no social policy purpose to collect punitive damages from your own insurance company and thus punitive damages are uncollectable under a UM policy.

When you make a UM claim you are, in effect, assigning a portion of your claim against the underinsured or uninsured driver. Thus, before you settle with and release the UM driver you must obtain the permission of your UM carrier because by releasing the at-fault driver you destroy the ability of your UM carrier to collect their UM payments from the at-fault driver. If the at-fault driver is solvent and you release them without the permission of your UM carrier then you may be waiving your right to make a UM claim.

The increase in oil and gas exploration and production in Texas is a mixed blessing. Along with an increase in jobs comes a substantial increase in loss of life, limb and property. Commercial auto losses and workers compensation claims are on the rise.

TXDOT data reflect that in 2013 the Eagle Ford Shale region had 236 fatal crashes and a total of 3,430 serious and/or fatal accidents, many involving oilfield trucks, which represents a 7% increase over 2012 statistics.

The Permian Basin area experienced 4,371 serious injury accidents including 358 fatalities representing a 13% increase over 2012.

The City of Denton recently passed a complete ban of texting while driving. The new law goes into effect on May 20 and carries a fine of $200. The cost of the fine is nominal compared the potential effect that a texting while driving ticket can have on insurance rates. The insurance companies that insure motor vehicles are fully aware that drivers who text while driving are many times more likely to cause a serious injury auto accident than the general motoring public.

The texting driver is operating under a visual distraction, a cognitive distraction and a motor skills distraction. When taken together these distractions have a multiplier effect rather than a mere additive effect and operate to create a total, complete distraction.

Texting is arguably worse a DWI/DUI driver because the intoxicated driver usually has their visual, cognitive and motor skills available to a decreased degree. The texting driver has all three of these critical faculties temporarily distracted from the operation of the motor vehicle. It is likely only a matter of time until texting while driving is banned statewide.

The Texas Supreme Court recently granted the petition in Nabors Well Services, Ltd. v. Romero and agreed to consider whether the non-use of a seatbelt by the Plaintiff in an auto accident case should be admissible to reduce the Plaintiffs’ damages. Many Texans will recall a time when the decision whether to wear a seatbelt was considered to be a personal decision. When the seatbelt laws were first proposed they were vigorously opposed as an unjustified governmental intrusion into individuals’ private lives. One of the compromises made to gain the passage of the laws was the agreement that the failure of an accident victim to wear a seat belt would not be used to reduce the victims’ damages. The concern was that insurance companies would use the failure to wear a seatbelt as an excuse to refuse to pay legitimate claims.

The seatbelt law was repealed in 2003 but until now the Texas Supreme Court has not considered the issue. The Texas Supreme Court is a political body and it is often difficult to predict what politicians will do but it seems likely that the Court will allow insurance companies to admit and argue the failure of an injured party to wear a seatbelt to reduce damages.

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Whether the settlement of a Texas Wrongful Death case should be structured heavily depends on the facts and circumstances of the case. The answer to this question involves a considerable discussion which should be had with an attorney who has handled a number of these cases. However, some general guidelines are helpful.

Structured settlements are almost always funded by an annuity purchased by the liability insurance company. Generally, when short term interest rates are high the settlement annuities pay more. When short term interest rates are low the settlement annuities pay less. Short term interest rates have been at near historical lows for some time now and thus annuities are not paying very well.

If the Plaintiff is a responsible adult and is capable of managing their settlement proceeds then a structured settlement may not be in their best interest. If the Plaintiff is a minor then a structured settlement may be a good alternative to paying the settlement funds into the registry of the Court, where it will only earn certificate of deposit rates, or paying the funds into a trust where the funds may be depleted by trustee’s fees.

In the case of Ewing Construction Co. v. Amerisure Insurance Co. The Texas Supreme Court recently released an opinion which narrowly construes policy exclusions and prevents construction companies from using common exclusionary language as the basis for refusing to pay covered claims.

This is much needed relief for consumers and the trend needs to be extended into the area of automobile and trucking policies. It is not uncommon to see policies that have a few sentences of coverage followed by page after page of vague and contradictory exclusions which are often used as an excuse for not paying legitimate claims. Consumers have little recourse but to hire and attorney and go through the litigation process in order to get the coverage for which they paid.

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A review of the Texas Supreme Court cases of Speegle v. Harris Methodist Health System and Haygood V. De Escabedo leads to the inescapable conclusion that while a Texas hospital may elect not to bill Medicare it is nonetheless limited to the Medicare rate when filing hospital liens against Medicare patients.

Medicare regulations allow a Texas hospital to pursue third-party liability insurance rather than Medicare. Hospitals frequently inflate their charges by five, ten or even twenty times the reasonable rate and then file a hospital lien pursuant to Texas Property Code sec. 55.004(d)(1) for the inflated amount. However, Texas Civil Practices and Remedies Code sec. 146.003(a) prohibits a hospital from billing an individual for amounts which they could have received from Medicare. In Speegle v. Harris Methodist Health System the Texas Supreme Court issued a very limited decision which held that Texas Civil Practices and Remedies Code Section 146.002(c) is preempted by Federal law to the extent that it requires a hospital to bill Medicare. While there are many Texas laws which regulate a hospital’s billing conduct, Section 146.002 (c) is the only section which was held by Speegle to be Federally preempted.

Speegle discussed Texas Property Code Chapter 55 hospital liens but did not hold that any of the Chapter 55 hospital lien provisions were Federally preempted. T.P.C. 55.004(d)(1) limits a Texas hospital lien to reasonable and regular charges. The reasonable and regular charge for Medicare patients is undeniably the Medicare rate. Speegle confirmed that if a hospital elects not to bill Medicare and to pursue liability insurance that the hospital must pay the applicable procurement costs. U.S. Dept. of Health and Human Services, Centers for Medicare and Medicaid Services, Medicare Secondary Payor (MSP) Manual, Chapter 2, Section 40.2 (2009). Costs of procurement include both attorneys fees, expert fees and litigation expenses.

Austin Federal District Judge Lee Yeakel recently issued an opinion that the provision in Texas’ recent anti-abortion statute requiring that doctors performing abortions must have admitting privileges at nearby hospitals violates the Constitution. Judge Yeakel wrote that the requirement unreasonably restricts a wonan’s access to abortion clinic and the rights of abortion doctors to do what they think is in the best interests of their patients. Texas Attorney General Greg Abbott has filed an emergency appeal of the ruling to the 5th Circuit Court of Appeals which sits in New Orleans.

Democratic State Senator Wendy Davis opposed the passage of the law, engaging in a 13 hour filibuster in an attempt to block the passage of the bill. Senator Davis has announced her intent to run for Governor of the State of Texas. Texas Attorney General Greg Abbott has also announced his candidacy for Governor.

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