Articles Posted in Wrongful Death

While the Texas oil and gas exploration boom has provide welcome economic relief to many areas of Texas, particularly some of the rural areas who were hit the hardest by the economic downturn, it has also brought record numbers of wrongful death claims. The U.S. Bureau of Labor Statistics reports that between 2007 and 2012 663 workers died in accidents in the drilling and fracking boom. About 40 percent of those deaths occurred in Texas. Texas has more than 100,000 workers employed in oil and gas related jobs. In 2012 this industry experienced a 60 percent increase in work related deaths with a reported 65 deaths.

The drilling and fracking activities often take place in slowing moving rural communities unaccustomed to the high speed truck traffic and heavy equipment that moves with a sense of urgency along formerly quiet, remote roadways. When the two converge the result is often lethal.

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In certain situations the letters of a wrongful death defendants’ lawyers may be used in the cross-examination of the defendant. Take the situation in which there is a pile up on the Interstate highway where Plaintiff stops in heavy traffic, Negligent Defendant strikes Plaintiff from the rear killing Plaintiff, and Negligent 18-Wheeler subsequently rear-ends Negligent Defendant killing Negligent Defendant. Plaintiffs’ family and estate make wrongful death and survival claims against Negligent Defendant. Negligent Defendant, who is insured by one of the “just say no” companies, AllSnakeFarm, denies liability claiming that Plaintiff was negligent in failing to see Negligent Defendant coming and failing to somehow get out of the way and avoid the accident. At the same time Negligent Defendant hires a Plaintiff’s lawyer who makes a claim against Negligent 18-Wheeler alleging that Negligent 18-Wheeler was not only negligent but also grossly negligent for striking and killing Negligent Defendant.

Texas Rule of Evidence 613 provides that a witness may be cross-examined regarding prior inconsistent statements. In Westchester Fire Insurance Company v. Lowe the Court held that the position statements of a parties’ counsel are the statements of the party and can be used in the cross-examination of the party. Using our same example, suppose the attorney for Negligent Defendant writes a Stowers demand letter to the attorneys for Negligent 18-Wheeler arguing that the death of Negligent Defendant is the fault of Negligent 18-Wheeler and asserting damages for the loss of a family member. Pursuant to TRE 613 and the interpreting cases the Stowers demand letter is the position statement of Negligent Defendant and can be used when cross-examining Negligent Defendant.

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An intoxicated teenage driver with a blood alcohol level more than three times the legal limit caused an accident in Burleson, Texas, which resulted in numerous injuries and left five people dead. Six lawsuits have been filed as a result of the incident. The teen was also prosecuted as a juvenile and sentenced to 10 years probation.

Unfortunately, the practical reality of the matter is that the drunken teenage driver who devastated five families will likely not pay one dime in damages out of his own pocket and will never spend a day in jail. Insurance will pay any damages that are recovered by the victims and the balance can be discharged in bankruptcy. Furthermore, the teen driver’s juvenile record will be sealed and he will turned loose on an unsuspecting society. All too often, juvenile drunken drivers show up in the system later as adult drunken drivers.

The punishment rendered to juveniles is often insufficient to deter future behavior and the bad conduct repeats itself. A strong argument can be made that that if a teen is old enough to operate a motor vehicle on the public roadway then they are old enough to be prosecuted as an adult.

A vehicle is a “total loss” when the cost of repair plus the salvage value of the wrecked vehicle exceeds the pre-wreck fair market value of the vehicle. This seems simple enough. Why but the analysis gets a little more complicated. Experience has shown that the initial repair estimate frequently missed damage that can only be seen when the vehicle is disassembled. Thus carriers build a margin of error into their decision by considering a vehicle to be totaled when it cost of repair plus the salvage value equals some percentage of the pre-accident value of the vehicle. Additionally, the services and standards used by carriers tend to value everything on the low end of the spectrum resulting the pre-accident values being artificially low causing lower total values. Different states use different total loss thresholds with most states falling somewhere around 75-80%. Texas Transportation Code section 501.091 provides that the TLT in Texas is the fair market value of the vehicle in its’ pre-accident status. Insurance companies are famous for stretching to declare a vehicle a total loss and then use a property damage appraisal service that historically renders low value to pay off the total value property damage. They then sell the salvage and come out ahead of where they would have been had they paid for the reasonable repair of the vehicle.

Accident victims can protect themselves by using established values for their property damage such as those set forth by Kelley Bluebook or NADA.

For more information contact www.earldrottlaw.com.