Articles Posted in Personal Injury

commuter trainA successful personal injury lawsuit requires many components. First, the plaintiff must “prove his case” against the defendant by establishing that the defendant owed the plaintiff a duty, that the duty was breached, that the plaintiff suffered damages, and that there was proximate cause between the breach of duty and the damages claimed by the plaintiff.

Once these elements are proven, the jury decides the amount of money due the plaintiff, and the trial court enters a judgment in the plaintiff’s favor. At that point, the defendant has the option of paying the judgment or appealing the case to a higher court. In most cases, it is the defendant’s insurance company that makes this decision (and many others). This is because a policy of insurance is a contract under which both the insured driver and the company have certain rights and responsibilities.

A recent case dealt with the consequences of a driver’s apparent failure to formally demand that an insurance company defend him in a state court lawsuit brought by a passenger who alleged that she was hurt due to the driver’s negligence.

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motorcycleAs most people know, a common place to have an accident is in or near a construction zone. For this reason, it is wise to slow down and leave plenty of room in front of one’s vehicle when driving in such areas.

Rush hour traffic also can be a frequent occasion for an accident because there are more vehicles than usual on the road, many drivers are distracted, and a disproportionate number of automobiles tend to speed.

Recently, an east Texas court was called upon to determine whether a jury made a mistake with regard to assigning fault in a multi-vehicle accident that occurred near a construction zone in rush hour traffic.

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busy street

Jury trials are part of the fabric of the American judicial system. The right to have one’s case decided by a jury of one’s peers is a great privilege. A jury can award substantial damages that can go far in compensating an injured person for medical expenses, lost wages, and pain and suffering caused by a negligent driver.

However, having one’s case proceed to a trial by jury in a personal injury case (or any other case, for that matter) is not without risk. After all, if the outcome was obvious to both parties, the case would probably have settled out of court.

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truck wreckMany issues, including proportionate responsibility (sometimes known as contributory negligence or comparative fault), can arise in a vehicle accident case. Recently, a Texas appeals court was asked to consider this issue, along with several evidentiary issues, after an accident involving an armored truck left a man with serious injuries.

The jury found in favor of the injured man, awarding him a substantial verdict. Dissatisfied with the result, the defendants appealed.

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insurance adjuster

As any attorney who regularly represents those who have been injured or have lost loved ones due to a motor vehicle accident caused by another person’s negligence can tell you, it is very important to talk to an attorney before signing anything proffered by an insurance company. In fact, the best practice is to speak to an attorney before even talking to anyone from the defendant’s insurance company.

A recent case illustrates what can happen when this advice is not followed.

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calculating expensesWhen a person in injured in a car or truck wreck and incurs medical expenses, he or she must provide certain evidence of the reasonableness and necessity of these expenses in order for them to be considered by the jury at trial. Traditionally, this has been accomplished through a deposition of the plaintiff’s treating physician(s).

The Texas Civil Practice and Remedies Code provides a possible shortcut for “proving up” medical expenses through an affidavit, rather than a (much more costly) expert witness deposition. However, the opposing party in a car accident case has the right to offer a counter-affidavit by a person who is qualified to testify in contravention of some or all of the matters contained in the plaintiff’s initial affidavit.

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Under the doctrine of sovereign immunity, governmental entities are immune from suit in many situations. In such cases, a person hurt by the actions of the government cannot recover monetary damages, even though, if the defendant were an individual or business, there could have been a substantial settlement or judgment.

Some argue that this rule, which was founded on an old English legal principle to the effect that “the king can do no wrong”, is antiquated and should no longer be followed. Unfortunately, however, the doctrine is alive and well in Texas.

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Typically, a case does not reach the appellate court level until after a final judgment is entered in the court in which the lawsuit was filed. Sometimes, however, it is necessary for an appeals court to rule on particular issues earlier in the litigation.

In a recent case, the Court of Appeals for the Thirteenth District of Texas was called upon to decide whether the plaintiff in a certain lawsuit was entitled to take the deposition of a representative of an opposing party (her uninsured motorist insurance company).

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Generally speaking, under Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a), a person who is injured in an automobile accident has two years in which to file a claim against the party whose negligence allegedly caused the crash. A failure to comply with this statute of limitations will usually prove fatal to a would-be plaintiff’s case, regardless of the merits of the underlying claim.

In addition to the formal filing of the complaint with the clerk of court, the plaintiff must also serve a copy of the complaint on the defendant. A recent appellate court decision explored the issue of the timeliness of service of process in a particular case.

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white police cruiserGenerally, a person who is hurt by another person’s negligence is entitled to recover money damages if he or she can prove that the defendant owed a duty of care, that the defendant breached the duty owed to the plaintiff, and that the plaintiff suffered damages as a legal and proximate result of that breach of duty.

However, when the allegedly negligent person was working for a governmental entity at the time of the accident, the matter is more complicated. This is because, in Texas, governmental units are immune from both suit and liability unless immunity has been waived.

One situation in which immunity is specifically not waived is when a governmental employee is responding to an emergency call in an authorized emergency vehicle, such as a police cruiser. Even then, there are sometimes exceptions to the general rule, but it is often difficult for a plaintiff to get past the presumption of immunity in a particular case.

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