Articles Posted in Wrongful Death

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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.

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Tractor-Trailer Accidents Caused By Tire Failures Due To Excessive Speeds

Tractor-trailer tires being operated at speeds that exceed their design limitations is causing an increasing number of catastrophic accidents. The increase in the allowable highway speed limits has resulted in many heavy truck tires being operated at speeds that are unsafe. Many truck tires were designed at a time when speed limits were much lower and the tires had a maximum sustained design limitation of around 75 miles per hour. Now many states, including Texas, have posted speed limits of 75, 80 and even 85 miles an hour. Operating truck tires at excessive speeds for an extended period of time caused excessive heat which degrades the tire more susceptible to blowouts, road hazards, a separation.

From 2009 through 2013 there were in excess of 14,000 fatal heavy truck and bus crashes in the United States which took 16,000 lives. The major truck tire manufacturers include Michelin, Bridgestone, Goodyear, Yokohama and Firestone with Michelin selling the most tires. The tire manufacturers blame the truck operators. The truck operators blame the tires as defective products. The National Highway Traffic Safety Administration (NHTSA) thus far has concluded that operating the tires in excess of the intended speeds is the culprit. No doubt both bear some portion of the responsibility.

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Texas’ brutal medical tort reform may have saved the Texas medical industry millions in malpractice insurance premiums and given Texas hospitals near immunity for medical incompetence but it hasn’t done anything to curb the stunning bills that Texas hospitals regular charge patients. The Government Accounting Office reports that Dallas hospital bill are among the highest in the national for some common surgeries such as hip replacements. The average charge for a hip replacement in Dallas County is $63,000, more than three times the $19,164 charge in Youngstown, Ohio.

The Texas’ so-called tort reform has become just another way for the hospital industry to line their pockets. What Texans desperately need is medical billing reform.

For more information contact www.earldrottlaw.com.

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From 1992 to 2013 the on-the-job death rate decreased overall but during the same time period the work-related death rate among Latinos increased. Latinos over 16 years old make up just 15.6% of the population but constitute nearly one-third of the workers in the construction and natural resource extraction industries which tend to include some of the more hazardous occupations. Hispanics’ over representation in the dangerous jobs is compounded by the fact that many cannot read safety instructions.

Employers often take chances with the work-hungry Hispanics who often are illegal and thus less likely to report injuries. Non-fatal injuries often go unreported. Fatal accidents get reported because, in the words of the National Council for Occupational Safety and Heath, “it’s harder to hide a dead worker.

For more information contact www.earldrottlaw.com.

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The current oilfield fracking boom in Texas is causing a rash of auto accidents and trucking accidents that result in multiple wrongful death cases. The hurried pace, long hours and huge equipment that comes with any oilfield boom produces oilfield accidents that put not only the oil and gas workers but also the rural residents at risk.

When an 80,000 oilfield tank truck driven by a weary driver goes around a curve in the middle of a rural road and meets the family station wagon multiple people die and that’s just what is happening. Accidents in which more than three people are killed have become so common that they have been given their own name … “Triple Trajedies”. Triple Trajedies increased in Texas from 72 in 2010 to 148 in 013 … an increase of more than 100%.

For more information contact www.earldrottlaw.com.

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A family from Mexico hire a coyote to smuggle them into the United States through Mexico. The coyote collected the family and entered a private ranch. An employee of the ranch stopped the coyote and inquired as to why he was on the ranch. The coyote sped away, lost control of his vehicle, and overturned, killing the family.

The parents of the deceased family sued the ranch’s operators and an employee for wrongful death, negligence, gross negligence, and assault. The ranch moved for summary judgment alleging that persons who were illegally in the country could not bring a wrongful death claim and that pursuant to the doctrines regarding premises liability the ranch owed no negligence duty to the trespassers.

The Texas Supreme Court held that the lawsuit could not be dismissed simply because the wrongful death claimants were in the country illegally.

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In a Texas Wrongful Death case a wrongful death claimant is entitled to recover “pecuniary losses”. Pecuniary losses have been held to be the present monetary value of the benefits that the claimant had a reasonable expectation of receiving from the deceased had he not been killed. Pecuniary losses in a wrongful death case include not only money but also things that can be valued in money. They include the loss of care, maintenance, support, services, advice, counsel, and reasonable contributions including loss of inheritance.

Loss of inheritance requires a showing of the decedent’s probable loss of earnings less what would have been consumed during the decedent’s lifetime. The proof of loss of inheritance is often extremely speculative and for this reason this element of recovery is less common.

The most common component of pecuniary loss is loss of support. The jury has considerable discretion in determining loss of support. Establishing loss of support requires that lifetime earnings be determined. This usually involves retaining an economist to review the deceased’s employment and earnings history and calculate the net present value of the after tax earnings. Then the amount of the contribution to the claimant is determined. There is no precise mathematical formula for determining the contribution to the claimant and the jury is given broad discretion. Currently the leading case regarding the recovery of pecuniary damages is Christus Health v. Dorriety, 345 S.W.3d 104(Tex.App.-Hous.(14th Dist.), rev. den. ( Aug. 26, 2011).

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General Motors recently admitted that it became aware of the defective ignition switches as far back as 2001 which caused the vehicles to shut off resulting in auto accidents. The defective ignition switches were manufactured by Delphi Automotive. A Dephi spokesman reports that the switches which were installed in approximately 1.6 million vehicles only costs between $2 and $5 dollars to produce and can be changed out in a few minutes by a trained GM mechanic.

The defective switches give rise to products liability causes of action potentially for both defective design and/or defective manufacture. In most states the liability attaches to both the manufacturer and any distributor/retailer in the chain of distribution.

For more information contact www.earldrottlaw.com.

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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.

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Jimmie John’s restaurant is being sued for wrongful death by the family of a man who was hit and killed by a speeding Jimmie John’s delivery driver. The lawsuit alleges that Jimmie John’s, which advertises “freaky fast delivery” knew or should have known that their fast delivery policy would encourage their drivers to operate their delivery vehicles at excessive speeds which might result in accidents.

The plaintiff’s allegations regarding Jimmie John’s policies are irrelevant. While they make good sound bites they really don’t change anything. A delivery driver is operating their motor vehicle while acting in the course and scope of their employment by Jimmie John’s because they are acting in furtherance of Jimmie John’s business purposes and because Jimmie John’s has the right to control the detail of the delivery driver’s work. Thus, pursuant to the Doctrine of Respondeat Superior, Jimmie John’s is legally responsible for the Wrongful Death claim made against their driver regardless of their policies.

For more information contact www.earldrottlaw.com.

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Earl Drott LawTyler, TX Phone: (903) 531-9300

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