Articles Posted in Personal injury laws

dreamstime_s_104477322Or if he doesn’t carry a large enough amount?

This is unfortunately a common question since here in Texas, 20% of drivers don’t have a liability policy, and from my personal experience, this number is much higher.

That means there are at least four million uninsured drivers on our roads. Yikes!

And that doesn’t even count the huge number of highly restricted “junk policies” our state legislators allow to be sold where the driver has been excluded from coverage by the owner.

A good personal injury lawyer will chase down these subprime companies, their insureds, and drivers and demand proof that there is no insurance. We have been successful at making some of them change their coverage decisions and pay claims, and when this doesn’t happen, sue the driver (and by extension his company) for our client’s damages and collect money that way.

Usually the other driver will have liability insurance coverage, but probably in the minimum amount of $30,000 for any one person’s injuries, $60,000 for all people he injured, and $25,000 for all vehicle damage.

Of course, this is often insufficient, especially if there are serious injuries with large medical bills and lost wages and/or multiple vehicles involved in the highway chain-reactions we see far too often on the highways in the Dallas-Fort Worth area.

In this case, if you and your attorney can negotiate a successful settlement with his liability adjuster or you have to file suit and either settle at a later stage of the litigation (which happens 99% of the time) or go to a trial, you will be paid this amount.

But what happens if and when he or she didn’t have insurance — or didn’t have enough? If you file a lawsuit and take a judgment, how will you collect your damages?

This is a serious problem that Texas drivers often have to deal with.

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images-1After having an affair with President Trump, then accepting $130,000 and signing a silencing agreement just before the election, the lawsuit the porn star filed last week went viral.

But since she chose to sign the agreement, how can she talk about the affair now? And what does this scandal have to do with my field of personal injury?

You know by now that the case involves a shadowy nondisclosure agreement between the comically named David Dennison and Peggy Peterson.

A clause in the agreement required the parties to resolve disputes through confidential arbitration, a provision common in whistle-blower contracts, and provides for enormous damages of $1 million if “Peggy” speaks out.

But Trump never signed the contract, so there is a legal question whether it is valid. And there is the moral issue of whether the most powerful man in the world can stifle anyone, especially a woman in this era of “me-too.”

The administration just indicated that it has already won a temporary restraining order and may try to to exercise prior restraint on the freedom of the press and prevent her interview with 60 Minutes from being broadcast.

Her lawsuit has lavished attention on this once obscure legal detail. Continue reading

Arbitration clauses have become the norm in health care provider contracts that patients must sign. Stranger

Why? They usually favor the big hospital over the little consumer and remove the possibility of a lawsuit.

But what happens when a patient is better off trying to resolve a billing dispute in front of a jury of his peers, not a panel of businessmen?

On Monday an all-too-rare appellate decision allowed that to happen when it sided with an injured Texan in Cardon v. Goldberg.

Why did hospital file a lien against patient’s settlement?

Susan Goldberg received treatment at the Seton Healthcare Services emergency room in Austin for injuries she sustained in an automobile collision. Ms. Goldberg incurred $7,800 in charges which were billed to her health insurer, Blue Cross Blue Shield of Texas. BCBS had the standard reduction contract with the hospital and the bill was reduced to $6,503.

BCBS agreed to pay its share of $4,600 and Ms. Goldberg was billed the remaining $1,903. She forwarded that to her own automobile insurance provider, Nationwide Mutual Insurance Company. So far, so good.

However, instead of just paying that lower amount, Nationwide somehow paid the full $5,000 available under her personal injury protection (PIP) policy.

You might think this situation could be easily corrected. After all, the hospital was paid in excess of the original bill, let alone the adjusted bill as negotiated by BCBS, and could simply refund the difference. Ms. Goldberg never agreed that all $5,000 of her PIP proceeds was to paid to the ER and had other medical bills and lost wages that she presumably wanted to pay with those funds.

But nothing is straightforward in the often Upside Down world of insurance (“Stranger Things” fans will quickly agree). Continue reading

dreamstime_s_39530144TexasBarToday_TopTen_Badge_June2016

Our use of Facebook, Twitter, Instagram, and other social media platforms is rampant. We think nothing of exchanging our private thoughts online. But those posts can come back to haunt people who have been injured in car wrecks. Look at what just happened to this woman.

A New York appeals court just delivered a decision that will help insurance company lawyers further pry into the social media accounts of people injured in car wrecks. The court held that a woman’s “private” Facebook status did not prevent disclosure of photos showing her physical condition before and after an accident.

In the discovery phase of lawsuits, one piece of evidence can lead to another. So courts are liberal in what attorneys can obtain if there is justification for its release. While you might assume that your post was not meant to be read by strangers, courts have taken the opposite approach.

Social media is a hot topic in the law. As the law and technology are rapidly evolving, questions about privacy versus their use at trial are common.

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right_of_way_NI’m always astonished how many drivers do not appear to know what the traffic laws are. But it’s been 30 or 40 years since many people read the driver’s handbook back in driver’s education class and no retest has been required since.

Many of our rules of the road are common sense or common courtesy — two things you don’t see as much of these days. But others can be a little confusing.

For example, what happens if two people arrive at a four way stop exactly at the same time? Or a traffic light is out and there is a blinking red light?

But turning at an intersection is a simple task.

We have a ridiculous number of car wrecks in Texas. It is tragic that over 21,000 people died or were seriously injured in them in 2016, according to sobering statistics that were just released.

So it’s worth reviewing traffic laws, especially right-of-way rules, every now and then.  Continue reading

Does the State of Texas have a duty to warn drivers about a dangerous road condition? Last week’s decision by a Texas appellate court ruling said that it did.

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The Dallas court affirmed a jury’s verdict in favor of a motorcyclist who crashed when his wheels hit a large crack in the highway. The trial court capped the $1,200,000 verdict at $250,000, the maximum damages allowed under the Texas Tort Claims Act, and the state appealed.

Brian Milton was traveling on FM Road 148 in Kaufman in 2012 at night. He couldn’t see the deep cracks in the road pictured here until he hit one and crashed his bike into a ditch. Milton had never driven on this road before. He was severely injured.

Testimony from state employees and other evidence showed that the TxDOT clearly knew about the problem before the crash. The responding officer noted the “big cracks” in the roadway.

A few days later, Milton’s wife took this photo of the severely eroded highway. And just one month earlier, a TxDOT worker had taken pictures of the poor road conditions and ordered signs to warn drivers about the failing road but the signs weren’t placed in the correct location.

In addition, the agency had begun roadwork nearby but had not yet made its way to the area of the crash where work orders were in place.

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A rare Congressional victory for injured plaintiffs.

Buried within the 600 pages of the federal Bipartisan Budget Act enacted on Friday is an obscure provision that allows some auto accident victims to keep more of their settlement or verdicts.

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This resolves an ongoing reimbursement battle that has been an ongoing issue in personal issue cases since a catastrophic 1996 Arkansas vehicle collision crash.

All states have statutes requiring tort claimants to repay them for medical expenses paid by their Medicaid programs. But calculating exactly how much of the plaintiff’s verdict or settlement should be reimbursed has caused vexing problems for attorneys.

For example, was it fair that the state be repaid in full while the injured person received little — if any — money? How much of the recovery had been allocated to those medical bills as opposed to other damages? And what happened in those all too frequent cases with difficult liability and damage issues and small insurance policy limits and assets that had affected case valuations in the first place?

With the new law, Medicaid enrollees will no longer be forced to reimburse state agencies from money they recovered for their non-medical expenses. As a result, they will be able to keep more of the funds for their own use.

Hurray!

The 1996 case: Arkansas Dept. of Health and Human Services v. Ahlborn

A young woman named Heidi Ahlborn was severely injured and her medical bills were astronomical. A portion ($215,000.00) was paid by her state’s Medicaid program. The Arkansas Department of Human Services (ADHS) obtained an assignment of rights from Ms. Ahlborn to repay the state from her settlement or verdict.

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dreamstime_s_81881804Insurance companies are notorious for denying and minimizing payments to people injured in car accidents, especially to those with pre-existing injuries. That is not fair. This is another reason you need a good injury lawyer fighting for your rights if you have been crashed into.

After all, hardly any Americans are in perfect health. So how can an insurance company refuse to pay fair compensation to someone who

  • has been in a previous wreck or hurt his body after falling down, lifting a heavy object, or playing sports — often many years ago?
  • has a previous injury that had totally healed?
  • has had surgery to a different part of his body, say his neck, and has now only injured his back?
  • has a medical condition that results in much worse damage than the defendant could have expected?

The defendant in court must pay for these damages. This important legal concept is referred to as the eggshell skull rule.

What is the rule?

Tort law has always held that the defendant takes the plaintiff as he finds him, including all hidden symptoms, fragile conditions, and unforeseeable medical problems. You should not be punished for being injured or weak before the crash, unless the damages you are claiming were not caused by it.

Imagine that a fictional plaintiff has a skull that is as thin as an eggshell. What if the injured person is elderly or frail? A fender-bender that might cause a mere bruise to a normal person’s head could potentially crack open the plaintiff’s extremely fragile skull. The defendant can’t possibly know this of course. However the defendant is liable for killing the plaintiff even though he could not have foreseen that the minor accident would be deadly.

The eggshell skull rule illustrates the most extreme example. But in real life, this doctrine applies to such medical conditions as previous herniated disks, osteoporosis, torn rotator cuffs, concussions, or use of blood-thinning medications to treat blood clots. Continue reading

capitolIt’s almost the new year and time to plan ahead and reflect on 2017. All in all, it’s been a good year for Texas drivers.

Here’s a recap of the most significant traffic safety laws enacted this year that will make our roads safer in the future.

Texting ban

Finally, after six years of trying by the Texas legislature, texting while driving is illegal as of September 1st. We were almost the last state in the U.S. to restrict this dangerous practice. Could the bill have been stronger? Sure. A $25 citation and other restrictions watered the deterrent value down, but the new law making texting while driving a misdemeanor is a good start.

And more good news: another proposed statute that would have blocked municipalities from imposing their own stricter texting while driving regulations was not passed. One item on my 2018 wish list is that Fort Worth and Dallas join the 100 other cities with local ordinances that are tougher.

Why? Government statistics reveal that 20 percent of car accidents involve a distracted driver. In my experience, the number is higher since distracted drivers rarely admit to the police that they were texting, surfing the net, or dialing numbers while driving after a car wreck.

There’s no better time than the present to further limit driving distractions and make our roads safer. Continue reading

https://www.fortworthinjuryattorneyblog.com/wp-content/uploads/sites/233/2017/10/0601busax2_1464821017896_2633261_ver1.0-1.jpgHow To Recover Damages After Government Employee Causes A Crash.

Special laws apply if you are involved in a collision caused by a state worker like a school bus driver.

I just obtained the total amount available under state law for my client. He was driving this 18-wheeler last summer when a school bus driver loaded with children failed to yield at a stop sign and caused this crash. My client had to have surgery to his shoulder and ankle. I have also made his workers compensation carrier agree to substantially cut its reimbursement lien.

But suing state agencies and their employees can be difficult, if not impossible, since our state legislature has imposed strict limitations on liability, damages amounts, and legal procedures.

Here’s how this legal process differs from most injury cases.

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