Fort Worth Injury Attorney Blog

Come Thursday, there will be some new laws in Texas.

State lawmakers earlier this year passed more than 1,400 new laws, and nearly half of which go into effect September 1st. Fortunately, only two affect your injury claim or lawsuit.

Loser pays

The goal of creating a "loser pays" system is cutting down on frivolous lawsuits in Texas, potentially making the court system more affordable for all Texans to use. The bill calls for some civil plaintiffs who sue and lose to pay not just the court costs, but also the legal fees, of those they are suing.

Speed limits

Texas motorists no longer have to worry about slowing down at sundown, now that the state won't have separate speed limits for day and night driving. The black nighttime speed limit signs that required motorists to drive 5 mph slower at night than during the day will start coming down Thursday. Officials say uniform speeds for vehicles during the day and night can cut down on problems such as tailgating and vehicles changing lanes to pass slower-moving vehicles - actions that play a role in some accidents. New Texas laws also let transportation officials raise limits to 85 mph in some remote areas, none of which are in Tarrant County.

Check points all over Dallas recently have caused drivers to be ticketed and even arrested for criminal violations, outstanding warrants, failure to have required insurance and vehicle information in their vehicles,and expired driver's licenses and inspection stickers, according to today's Dallas Morning News. Thirty tickets were issued in one hour in northeast Dallas alone.

These Traffic Enforcement Road Checks have been attacked by civil libertarians for their arbitrariness. Racial profliling has been alleged. However the ACLU stated that they are legal as long as they do not discriminate upon drivers based upon their ethnicity.

These road blocks have not been set up in Tarrant County yet.

I encourage all of my clients to make sure they have their driver's licenses, proofs of insurance and required inspection stickers when they are driving. Tickets can cost over $250.00 each.

My clients some times ask me how to save money on their policies, especially after they have been in a wreck. Here are the factors that companies use to charge you:

Type of vehicle: Statistics show which vehicles tend to be involved in more accidents, suffer more damage, cost more to repair and are more likely to be stolen. Owners of those vehicles, such as sports cars, pay higher premiums.

Age: Drivers younger than 25 have more accidents and pay higher premiums; drivers older than 65 also pay more.

Gender: Male drivers, particularly those who are younger, have more accidents and pay higher premiums.

Marital status: Single drivers have more accidents than married drivers and typically pay higher premiums.

Driving record: Plays an important role in determining premiums; drivers who have had an at-fault accident in the last three years are more likely to have another accident and typically pay higher premiums; also applies to moving traffic violations.

Credit history: Studies have shown that drivers with a poor credit history tend to have more accidents than drivers with a good credit history, so those with a poor credit rating pay higher premiums.

Other factors: Anything that might influence frequency and size of claims. For example, a policyholder who uses his car for business or drives more miles annually has a greater likelihood of having an accident. Similarly, those who live in a small town are less likely to have an accident than those living in a large city.

Now that our rates are being hiked again, I wanted to share a few ideas on how to save money on your auto insurance bill.

Shop for the best rates. There are many sites to choose from. I find that the Department of Insurance site is excellent. See https://apps.tdi.state.tx.us/helpinspublic/ I searched different companies to find competing rates for the following demographics: car being driven to/from work, single man, age 25-64 living in 76112 zip code in Fort Worth, good driving record, average credit rating. The cheapest liability policy was offered by USAA ($303) and the most expensive was sold by Chartis Property and Casualty (a whopping $1,860). Other companies rates were as follows:

AAA Texas County Mutual $395
Allstate County Mutual 808
Allstate Fire and Casualty 370
GEICO 548
Hartford Fire 362
Progressive 496
State Farm Mutual 526
State Farm County Mutual 637
Texas Farm Bureau 404

As you can see, it pays to shop around.

Other ways you can save money include:

Take a higher deductible.

Reduce coverage on older cars.

Use the same insurer for home and auto coverage.

Take advantage of low-mileage discounts.

Ask about group insurance or discounts through employers, business or alumni groups.

Seek discounts for no accidents or moving violations, good-student discounts

Take a defensive driving course.

Automobile liability premiums have unexpectedly increased by this huge amount this year, according to the Texas Department of Insurance. And a typical comprehensive policy per vehicle in Texas now costs $1,262.00 a year -- one of the highest rates in the U.S.

Why?

According to the multi billion dollar insurance industry, it is because liability rates increased from $25,000 to $30,000 per person on January 1st and medical costs for those injured in collisions have dramatically increased this year.

Really?

Consumer groups state that it is simple corporate greed. "I can't think of any reason to justify that kind of an increase in one year," Alex Winslow, director of Texas Watch, said. "I wouldn't be surprised if some insurers are trying to squeeze whatever they can out of their policyholders."

Consumer representatives also said that insurance companies are also hitting up their customers for bad investments in the tanked stock market.

What do you think?

It is possible that there have been more $30,000 claims already paid out from wrecks , as I have settled a lot of claims for this amount this year as opposed to the old limit of $25,000. But that would only be an extra $5,000 for those maximum policy limit claims -- obviously not enough to jump rates by so many millions of dollars.

And while medical expenses may have increased somewhat since January, again it is hard to believe that that justifies such a huge rate hike.

I was disappointed that after our legislature finally passed a bill that would have made it illegal to write, read, or send text messages, e-mails, and instant messages while driving. This bill would have prevented thousands of collisions each year caused by distracted drivers, our governor decided to veto it.

When the bill was introduced, I was happy that something was finally going to be done to crack down on this problem. Similar laws are already on the books in 20 other states.

Unfortunately, Governor Perry vetoed the bill because he believes it is "overreaching" and not what the government should be doing. Governor, protecting its citizens is exactly what the government should be doing.

Dave Teater, a senior director for Transportation Strategic Initiatives for the National Safety Council, said texting and driving is a new threat to public health and safety and that the governor's decision to veto the legislation was "disastrous."

"If the state is not willing to say whether it's right or wrong, then it implies that is is not dangerous" he said. {People are crashing and causing fatalities across the country. If our government can't be involved in public safety, I don't know what government is good for."

I have represented numerous drivers injured by distracted drivers, specifically drivers who were texting. When people are looking down, they are not paying attention. It's as simple as that. When you're not paying attention behind the wheel of a car, you are a threat to yourself and others.

Continue reading "Governor Perry's Veto of Texting While Driving Ban" »

Tort reform's about money more than fairness

Proposals to change Texas' civil justice system aren't ever mainly about fairness and right. They're about money: Who's making it, who's spending it and who's giving it to which candidates.

The Legislature significantly changed the system several times in the past 25 years, and there's no denying that sweeping "tort reform" in 2003 slashed the number of lawsuits filed for personal injuries.

That means less money for trial lawyers, who typically represent plaintiffs and tend to support Democrats. Republicans, who usually are backed by moneyed business interests, want to make sure they keep the upper hand.

Thus, Gov. Rick Perry continues promoting the fallacy that Texas runs amok in frivolous suits and unhinged juries, thereby needing emergency legislation to remain business-friendly.

Put aside for a moment the legitimate argument that the latest round of "tort reform" is a remedy in search of a problem.

On May 9, the House passed HB274, which supposedly would make the judicial system more efficient and accessible to everyone. Intentionally or not, the measure has potential for all sorts of mischief that would not improve civil justice.

During floor debate, the House added a provision enabling property owners who successfully challenge their appraisals to get their attorney fees reimbursed by the appraisal districts.

Sound like a victory for the little guy? Not so fast. Who has the resources to risk appealing a tax appraisal dispute through the courts? Most likely deep-pocketed businesses with high-dollar lawyers.

A representative of The Equity Center, which represents 690 school districts, told members of the Senate State Affairs Committee on Monday that, faced with the potential of having to pay uncapped legal fees, appraisal districts probably would undervalue corporate properties, shifting the burden to smaller businesses and residential owners. Not only that, diminished local valuations would leave school districts short on property tax funds -- which are their main revenue source -- and forcing the state to fill the gap.

David Thompson, a witness representing school administrators, pointed out that the Texas Tax Code already provides for attorney fees in successful appraisal challenges; there's just a cap on the winnings. That seems a fair way to protect taxpayers and guard against windfalls. Why change it?

Other critics of the House bill have trotted out a parade of horribles, some quite plausible.

Texas law already provides for a form of "loser pays" that lets parties whose settlement offers are rejected get their costs paid when a jury awards less than was offered. But the amount the "loser" has to pay is limited by law.

But the House bill removes the caps, meaning an individual could win a suit but take a devastating financial hit. One example: A man wrongly held by a hardware store for suspected shoplifting might reject the store's settlement offer, choose a trial to clear his name, get a much lower jury award than the settlement offer, then have to pay the company's enormous fees and costs. Though he did nothing wrong by taking his legitimate grievance to court, he could be financially crippled. Businesses also could face this kind of perversity, critics noted.

State Affairs Chairman Robert Duncan of Lubbock and Sen. Joan Huffman, a Houston lawyer, are working on a committee substitute to correct the problems with the House bill.

The only imperative for this legislation is that Perry wants it. If its passage is inevitable, the bill should at least not make the system worse.

I am delighted to announce my latest substantial recovery, this time on behalf of Mr. D___, a hard working Fort Worth resident. And it's been a busy month, with $1,230,000.00 in recoveries so far!

Mr. D___'s truck was side swiped by a Ford delivery van on the south side of town two years ago. He was taken to the ER, but the initial tests were negative. Unfortunately, my client had to undergo a cervical fusion six months later. He lost his truck driving job, but was already 65 years old at the time.

The defendant's insurance company and its attorneys had many defenses, some of which were valid. They argued that Mr. D___ was not seriously injured, he suffered from arthritis, he didn't even need the surgery, and if he did, their driver did not cause it, his medical bills were excessive, he had fully recovered from his injuries, he was going to retire at the age of 65, the visible damage to both vehicles was relatively minor due to the side swipe, the verdict potential was severely limited under the draconian "paid vs. incurred" statute enacted by the Texas Legislature in 2003, etc.

I fought hard and am proud that I forced the insurance company to pay this outstanding settlement. Then, to increase my client's recovery of money, I greatly reduced the subrogation liens held by his health insurance carrier and various medical providers. Now I am in the process of slashing his Medicare lien so that he will get even more money.

My client was ecstatic with the outcome, as you can see in this photograph. It was my honor to represent this wonderful couple (I also obtained a good settlement for his wife when she was hit in front of a school last year by a FWISD bus) and wish them the best of luck in the future.

House Bill 274 Further Stacks the Legal Deck in Favor of Big-Money Defendants

--- Houston Chronicle Editorial, May 14, 2011

The campaign by so-called tort reformers in Texas has long since moved beyond its avowed goal of preventing frivolous lawsuits and massive damage judgments. With the passage of HB 274 by the Texas House last weekend, it has graduated to an all-out assault on the ability of consumers and small business owners to seek legal redress in civil courts against powerful business interests. You might call the latest iteration "stealth tort reform." The primary damage isn't in what the bill adds to current law. The injustice is in what it eliminates.

The last major tort reform legislation passed in 2003 in Austin mandated that plaintiffs who spurn settlement offers and win a jury verdict must receive a judgment award of at least 80 percent of the offer. Otherwise, they are responsible for paying legal fees for the losing defendant from the date they refuse the settlement offer. However, those fees could not exceed the amount of the judgment, so at worst the winner went home empty-handed.

That existing provision is already a powerful weapon in the legal arsenal of deep-pocket defendants such as insurance companies and corporations, since plaintiffs would be tempted to accept low-ball settlements rather than risk receiving nothing. It's not fair, because winning plaintiffs in most tort cases cannot seek reimbursement of their legal fees, only much smaller court costs. The playing field is already sharply tilted in favor of the defendants.

Not content with that advantage, the crafters of this bill have further stacked the deck. It removes limits on the legal fees a winning plaintiff could be forced to pay if they eschew a settlement offer and the judgment falls below that 80 percent margin. Rather than receive nothing, the winner could be tagged with the loser's huge legal fees. As Houston personal injury lawyer Steve Waldman puts it, "The moral of the story being told by the advocates of this bill is this: If you have a claim against a big corporation, take whatever it offers, because if you dare to take them to a jury, you risk your economic life."

Florida implemented similar provisions, and the ensuing public outcry forced legislators to repeal it five years ago. We agree with Alex Winslow, executive director of the citizen advocacy group Texas Watch, that HB 274 "is designed to force families and small businesses with valid claims to weigh the possibility of paying the legal costs of insurance companies and multinational corporations [and] is at best detrimental to public accountability and at worst unconstitutional." The concept of making plaintiffs with valid cases potentially responsible for defendants' legal fees is a feature of British law that our nation's founders wisely rejected. It's a legal concept that should have no place in Texas courtrooms.

It's hard to believe this legislation was designated by Gov. Rick Perry as an "emergency" to facilitate its already inevitable passage by the House GOP super majority during a raucous, Mother's Day eve session that ended in flaring tempers and abrupt adjournment. Perhaps the only emergency was the governor's need to placate his backers at Texans for Lawsuit Reform, a major contributor to GOP state legislators.
___

Under the original proposed new law, the victim of a drunk driver could have to pay the attorney's fees of the drunk - even if the victim WINS at trial!

1. The so-called "Loser Pays" means that who ever 'loses' a lawsuit will have to repay the other side's attorney's fees and costs (each side pays its own now, but that is why we make insurance premium payments, to insure that those will be provided for).

2. However, only the insurance company will get to invoke this law. If you are the injured not at fault motorist and think the negligent driver/his insurance company should pay your legal fees and costs, too bad!

3. Assume a drunk driver rear ends you and your child causing serious injuries. Your medical bills and lost wages total $150,000, but the insurance company only offers $100,000 so you naturally file suit and go to trial. Unfortunately, your medical records state that you might already have had a little arthritis, your son had fallen off a swing set four years ago and bumped his head, and Cigna paid a lot of your medical bills. The other attorney is able to convince the jury the accident was somehow partially your fault and he also convinces the jury not to give you all of your lost wages because 'you should have gone back to work sooner' instead of taking care of your injured child at home. Still, even with all that, you win the case. However, the jury awards you $79,000.00. But you have LOST under this new law because you only won 79% of the insurance company's settlement offer, less than the required 80%, so now you are on the hook for $$$ for their attorney's fees, expert witness fees, deposition bills, court costs, etc.

Please call your state senator immediately and ask him or her not to vote for this horrible law.

House Bill 1110 would require all convicted DWI offenders -- even first timers - to install ignition interlock devices in their car. Even first time convicted offenders would have to blow on the device to calculate their blood alcohol content.

If it's under the legal limit of 0.08, the car engine would start.

Now, only repeat offenders or drivers with a 0.15 BAC level have to have the devices installed.

Arizona's reduced its rate by 46 percent by requiring this, and it is shocking that this is not already the law here.

Of course, the offender can have someone else blow into the machine, or find another car to drive. But it would have a deterrant effect and we must crack down on all of the drunks out there on the roads.

MADD is one of my favorite causes, and it strongly supports this bill.

I only handle personal injury cases, but the "Loser Pays" bill just ramrodded through the Texas House -- without any debate allowed -- should be called "Winner Pays."

If this bill becomes law, the winner of the lawsuit may have to pay the loser's attorney's fees. There is no cap on the amount the winner has to pay. A plaintiff - and this includes a small business - can win a lawsuit and go bankrupt.

The following scenario can actually happen:

1. Joe's Lawn Service ("Mom and Pop" small business) buys 10 XYZ tractors at a cost of $100,000.

2. The tractors do not work, costing Joe to lose most of his landscape business.

3. Joe sues XYZ for the $100,000 cost of the tractors plus $50,000 in lost profits.

4. XYZ offers Joe $80,000 to settle. Joe turns it down because he has lost $150,000.

5. Joe goes to trial and wins $60,000. The jury finds Joe had 40% of the use of the tractors, and the judge disallows Joe's lost profits claim on a technicality.

6. Because Joe won less than 80% of Hodna's offer, he has to pay XYZ's enormous attorney's fees and litigation expenses.

7. XYZ's law firm has assigned one senior partner ($750/hour), one junior partner ($450/hour), two associates ($250/hour each) and a three paralegals ($100/hour each) to defend the case, and has run up $350,000 in legal fees and litigation costs.

8. Joe is awarded $60,000, less XYZ's $350,000 in legal fees. In other words, Joe has won his lawsuit but owes XYZ $290,000!

9. Joe files for bankruptcy.

This can really happen. The current Offer of Settlement rule, Civil Practice Code Section 42.004, subsections (d) and (g) limit the shifting of fees to a reduction of the plaintiff's damage award. Subsections (d) and (g) are repealed by HB 274 - making the amount of fees the winner has to pay the loser unlimited. Under HB 274, a plaintiff can win his lawsuit and end up financially destroyed.

The "tort reformers" seek to limit lawsuits for personal injuries and wrongful death. How do they explain this result to small business owners?

The moral of the story being told by the advocates of this bill is this:

If you have a claim against a big corporation, take whatever they offer, because if you dare to take them to a jury, you risk your economic life.

Call and email your state senator. Repealing CPRC 42.004 (d) and (g) turns "loser pays" into "winner pays." Tell your senator to oppose the repeal of CPRC 42.004 (d) and (g)!

"Winner Pays" is unfair for Texans!

Now here's "good news:" The U.S. Department of Transportation reported that an estimated 32,788 people were killed on U.S. roads in 2010. This is a 3% decrease over the year before, and the lowest number of deaths since 1949 -- five years before I was born.

In the five state region that includes Texas, fatalities fell 6.8%, from 5,991 to 5,304.

Government officials attributed the decline to more people wearing seat belts, safer vehicles, and efforts to curtail drunk driving.

While these may be true, I would also attribute the decline to fewer people driving as many miles due to the recession.

And it could be suggested that 32,788 people dying -- think of Amon Carter stadium being about 2/3 filled -- on our highways is ridiculous.

Google Image Result for http--upload_wikimedia_org-wikipedia-commons-8-86-Amon_G__Carter_Stadium_AFB_071231-F-7061J-012_JPEG.mht

And a bill was filed that would raise our speed limit in Texas to 85 miles per hour on a lot of highways. Can you imagine what that will do to the death toll?

I believe that we should lobby our legislators to make our highways and streets safer, not more dangerous.

Let me know if you agree.

As our state legislature meets to consider stricter controls of our insurance companies, data just released show that Texas home insurers racked up some of the biggest profits ever last year.

No wonder. Our home insurance rates are the highest in the U.S. And only 48.4 per cent of premiums were paid out as claims. A loss ratio of 60% is considered profitable.

These companies collected a whopping $5.7 billion in premiums and only paid out $2.7 billion in claims.

And State Farm, the largest insurance company, continues to fight the state's order to refund hundreds of millions of dollars in overcharges to its customers.

Consumer groups are trying to get the law changed to require these companies to first get approval from the state before they up their rates.

I do not handle homeowners claims, but wanted to help disseminate this blatant abuse of the system.

On Monday morning at 2:40 a.m., a pickup truck driven by Louis Nieves, 23, who was DWI and had at least 10 beers at a downtown bar, crashed head-on into a gasoline tanker truck as he drove the wrong way on Interstate 30 near Beach Street.

The truck caused the tanker to explode. Its driver, Alejandro Raya, a kind and hard working family man from Fort Worth, was tragically killed. Mr. Raya, who had lived here for over 25 years, was married to a woman who works just down the street from my office at the Railhead BBQ restaurant and had three children, ages 21, 14, and 12. He was excited about his daughter's upcoming Quinceanera.

As the father of an almost 21 year old daughter, whom I love dearly, I can only imagine the grief that his family is suffering now and I am truly sorry for its loss.

The devastation caused by the crash and ensuing fire was immense.

The steel and concrete bridge over Sycamore Creek literally dissolved in the flames and the four lanes of I 30 will have to be reduced to two lanes for the next five months. What a hassle for people driving to work downtown or getting onto the Mixmaster.

The Texas Department of Transportation will have to pay at least $15 million to design and build the bridge and highway -- this in the middle of our $27 billiion budget deficit.

The State will have to pay over $40,000.00 a year to imprison Nieves for many, many years, not to mention the cost of his trial and court appointed attorney. He is currently jailed in Mansfield awaiting transfer to the Tarrant County Jail. His bond was set at $90,000.00, so it is safe to say he will be in jail until his trial.

And of course there is no way to put a value on the life of Mr. Raya or the suffering of his wife and children.

You will remember that just last week, at about the same time in the morning, a car pulled out in front of a tractor trailer and nearly caused it to plunge 50 feet from the I20/820 ramp down on to cars beneath.

This story makes me sick, and I demand to know the answers to these questions:

How long had Nieves been getting drunk at that bar?

Was he already drunk when he got there? Had he been drinking at another bar?

How did the bar on East 8th Street where Nieves was getting wasted not know that he was intoxicated?

Why did it continue to serve him in violation of the Texas Alcohol Beverage Commission guidelines?

What time did he leave, since the wreck happened approximately 40 minutes after closing time, and the bar was no more than five minutes away.

Why didn't others at the bar try to stop him from driving?

How did Nieves not know that driving after drinking 10 beers would be dangerous?

Why didn't he have a designated driver or call some one to take him home?

Had Nieves ever done this before?

How many drunk customers had this bar allow to drive away before?

Why didn't Nieves get killed, not the other way around? Why does the drunk never seem to get hurt?

How did Nieves have so much money to spend on alcohol and does he have liability insurance? Insurance greater than the (just increased) limits of $30,000.00 per person?

Why do we allow this carnage to continue, night after night? What are we doing to prevent drunks from crashing into us?

As readers of my blog know, I HATE drunk drivers. I believe that Nieves should be given a long prison sentence for vehicular manslaughter and the bar should be sued under the "dram shop act" for civil damages, as punishment to him and as a deterrant to others who drink and drive and bar owners who serve them.

That is why I support MADD - Mothers Against Drunk Drivers - and am supporting its Walk Like MADD next weekend here in Trinity Park. And I will make a contribution on the way home to the fund for the family being collected at the Railhead, and encourage any one else to do so if they can.

In another horrible DWI crash, a truck driver named was tragically killed on Sunday morning at 2:00 o'clock a.m.