Articles Posted in Motorcycle Accidents

The United States Supreme Court ruled that Obamacare is constitutional in National Federation of Independent Business v. Sebelius by holding that the penalty for not complying with the individual mandate to buy health insurance is actually a tax rather than a penalty. Regardless of whether you think that Obamacare is a compassionate law that will save humanity or an evil plot to shove our country into socialism the law is what it is. Most lawyers simply shrug their shoulders and admit that the law probably is a tax.

Forget for a minute that the Obama administration argues for political reasons that the law creates a penalty rather than a tax. The penalty only applies to individuals who do not purchase health insurance. The federal government unquestionably has the authority to use taxes to encourage or discourage certain behaviors and regularly does so. The penalty is based on the amount of the individual’s income and is paid to the IRS. Sounds like a tax. The amount of the penalty is determined based on a schedule that starts at $9500 in individual income and increases at the rate of approximately 2.5% of income but is capped at the cost of an Obamacare “Bronze” health plan which is estimated to cost between $4500 and $5000 in 2016 and to increase thereafter. Sounds even more like a tax.

If it walks like a duck, quacks like a duck, and looks like a duck then it probably is a duck. Love it or hate it, the Obamacare individual mandate penalty probably is a tax.

The Texas Supreme Court in Texas Mutual Insurance Company v. Ruttiger recently effectively gave Texas workers compensation carriers immunity for their bad faith misconduct committed during the claims handling process. In Ruttiger, Timothy Ruttiger was injured on the job and filed a workers’ compensation claim. The employer took the position that Ruttiger’s injury was not job related. Anyone who has dealt with workers’ compensation adjusters knows that their evaluation as to whether an injury is work-related is little more than a hunt for an excuse to deny the claim. The employer’s unsupported assertion was more than enough for the Texas Mutual Insurance adjuster and the claim was denied.

At trial the credible evidence proved both that Ruttiger had sustained an on-the-job injury and that Texas Mutual had acted in bad faith in denying the claim. The First Court of Appeals in Houston upheld the Trial Court and Texas Mutual appealed to the Texas Supreme Court. The Texas Supreme Court recently issued an opinion reversing the First Court of Appeals and eliminating the common law cause of action for breach of the duty of good faith and fair dealing in connection with the handling of a workers’ compensation claim.

Insurance companies are purely economic institutions. They have no conscience and are amoral in their approach. This is not so much a criticism but rather a simple and candid observation that an insurance company will do what is in its’ economic best interest. The potential for a bad faith claim gives the carrier the economic interest to act in good faith. Without the potential for a bad faith claim hanging over the insurance company’s head unchecked workers’ compensation company bad faith will likely become norm.

In Brainard v. Trinity Universal Insurance Company the Plaintiff was killed when his vehicle was struck by an oilfield truck. He left a widow and five children. The well service company that employed the at-fault truck driver was underinsured and Brainard’s family and Estate made a claim for underinsured motorist benefits against their own carrier, Trinity Universal Insurance Company. Trinity refused to pay the benefits.

A claim for uninsured motorist benefits is a suit on a contract. Pursuant to Texas Civil Practices and Remedies Code Section 38.002 the successful litigant in a suit on a contract is entitled to recover attorney fees. In order to recover attorney fees the Plaintiff must be represented by counsel, present the claim to the insurance company, and the insurance company must have failed to pay the claim within 30 days of presentment. There is no question that Brainard made a UIM claim and that Trinity Universal failed to pay the claim within 30 days. The jury rendered against Trinity which included underinsured motorist benefits and attorneys fees. Trinity Universal claimed that they simply had no duty to pay policy benefits until there was a legal determination and thus the obligation to pay attorney fees would not accrue unless they failed to pay benefits within 30 days after a judgment became final. The Texas Supreme Court agreed thus causing consumers to bear the burden of the attorneys fees necessary to force underinsured motorist carriers to pay even the most obvious and legitimate of claims.

The Brainard decision allows UIM carriers to use litigation as leverage in an attempt to pay their insureds less uninsured/underinsured motorist benefits than the insureds are entitled to receive.

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.