Articles Posted in Personal injury laws

IMG_0958It was just revealed by NBC5  that the Dallas school district has settled 680 personal injury claims and paid $2.3 million in settlements over the past few years.

Most are fortunately small injuries, so the recoveries are just a few thousand dollars each. But sometimes the injuries were substantial — and the settlements were not proportionately large.

The Phillips family, whose daughter suffered a ruptured spleen when a bus collided with the family’s car, told the reporter how the money did not cover their damages.

Due to laws governing the maximum amounts that can be paid by state, county, city, and branches of local governments like the school district here, the total amounts are limited.

How do those caps affect injury claims against governmental branches and units?

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dreamstime_xs_33224968Texas Farm Bureau (TFB) recently tried to trick Texans into giving up their constitutional right to a trial by jury.

The consumer watchdog of the Dallas Morning News, David Lieber, recently wrote about this outrageous attempt where in exchange for a 10% to 25% so-called discount, a customer would have given up his or her right to file a lawsuit. Instead, he would have to go to mediation and then arbitration if he disputed TFB’s appraisal of his damages.

But the mediator/arbitrator would be paid for/controlled by TFB. Care to guess who was going to win that dispute?

Texas Supreme Court (1)New Case To Make Often Exams Commonplace?

The Texas Supreme Court ruled on Friday that a trial court abused its discretion when it denied a defense medical examination (DME) of the plaintiff in a personal injury case. It may have opened the doors to a flood of DME requests.

In Re H.E.B. Grocery Company, L.P., Relator was a mandamus proceeding. The plaintiff, Daniel Rodriguez,  filed suit after he tripped over a loose metal plate in the parking lot of a H.E.B. grocery store.  He injured his spinal cord, neck, face, shoulder, arm and knee and underwent two spinal surgeries. Complicating the case, the plaintiff later filed a lawsuit after a Sam’s club employee dropped an artificial turf roll on his head and further injured his neck and head.

H.E.B. retained an orthopedic surgeon as its expert. After conducting a records review, the doctor opined that Rodriguez’s injuries were preexisting and that the MRI taken one month after the fall (and relied upon by the plaintiff’s surgeon) was inconclusive. H.E.B then moved the court to allow the expert to examine Rodriguez. The court denied the motion without explanation, which was affirmed on appeal.
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Seat belt -- woman buckling up

The Texas Supreme Court ruled last year that a defendant could use the plaintiff’s failure to wear a seat belt as evidence against him if this conduct caused or was a cause of his injuries. Nabors v. Romero overruled the court’s prior decision set 40 years ago.

On Monday, the Texas Eighth District Court of Appeals in El Paso issued a complicated opinion in this significant case that affects the outcome of automobile and truck collision lawsuits.
On remand, the justices concluded that the trial court had abused its discretion when it excluded the defendant’s expert’s opinion that seat belts reduce the risk of ejections in serious rollovers. However the court affirmed the trial court’s exclusion of the defendant’s expert who blamed injuries to four of the minor plaintiffs on the adult occupants on other grounds.

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Antonin Scalia died at a West Texas ranch south of Marfa on Saturday. His death ignited a political war. And some suggested he was murdered, really?

Partisan warfare erupted within minutes between leaders of the Republican and Democratic parties about when — even if — a new justice should be nominated. Lists of possible candidates were published and vetted.

Justice Scalia was the longest serving justice on the Supreme Court, having been appointed by President Reagan 30 years ago. He was ranked as the third most conservative, behind Justices Thomas and Alito.

Justice Scalia was known, even revered, for his staunchly conservative rulings, emphasis on the original meaning of the Constitution, and often bitter dissents.

What effect will this rare election year vacancy on the polarized Court have on Americans? From current undecided cases to the very future of the Court itself, the justice’s death has set off a constitutional crisis not seen since Robert Bork’s unsuccessful nomination in 1987. 

Effect on the Liberal-Conservative Balance of Power

Several recent ground breaking decisions have been decided by 5-4 splits. As of today, the court is evenly balanced 4-4 or even 5-3 in favor of liberals, depending on Justice Kennedy’s unpredictable vote, so many split decisions with no precedential value may be common. 

But two of the liberal justices, Ruth Bader Ginsburg (age 82) and Stephen Breyer (age 77) and unpredictable Anthony Kennedy (age 79) are elderly. 

When they retire or die, the Court would tilt towards the right if the new president is a Republican. He could set a record by naming four new justices in his first term. 

These new justices would guarantee 7-2 decisions that reverse decisions concerning abortions, same sex marriages, the Affordable Care Act, immigration, criminal sentencing, and a host of other lightning rod cases. 

A Democratic president could achieve a 5-4 and possible 6-3 tilt to the left, making the Court the most liberal is has been since President Franklin Roosevelt’s appointments during the Great Depression.

The stakes for setting the direction of the highest court of the land have never been higher in our lifetimes.

All this while the justices are supposed to be above party politics.

Justice Scalia, who is reported to have been in excellent or poor health, would have turned 80 next month. A mandatory retirement age — perhaps 75 — needs to be considered to prevent the country from lurching into a political crisis the next time a justice dies.

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Car Wreck Victims Get Rare Victory

In a unusual ruling in favor of accident victims, the U.S. Supreme Court decided today that an ERISA plan cannot pursue funds that the plan participant has already spent on untraceable items. 

In Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan, an decision also surprising by its 8-1 vote, the Court considered whether an ERISA fiduciary was entitled to money the plan claimed was overpaid to the injured party if the funds were no longer in the participant’s possession and control. The Supreme Court said no.

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Texas law permits loss-of-use damages in total-destruction cases

The Texas Supreme Court made a decision that restores logic and equity to property damages awards in auto accident claims. In its January 8, 2016 decision in J&D Towing, LLC v. American Alternative Insurance Corporation, the court ruled that Texas law permits loss-of-use damages in total-destruction cases.

This loss of use ruling is a victory for auto accident victims who were previously subjected to an irrational interpretation of Texas law by insurance companies. 

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Lawyer handing motion to the court

Tomorrow’s Attempt To Intimidate Plaintiffs, Help Big Businesses and Drive Up Costs

The U.S. House is voting Thursday on the deceptively named Lawsuit Abuse Reduction Act. LARA purports to prevent the “frivolous lawsuits” that multi-billion dollar corporations  would have you believe are commonplace in our federal courts by imposing mandatory, not discretionary, sanctions.

But in reality, the law is an attempt to close  the doors to parties who have the right to be in court that is afforded by the Constitution in Article III, Section II.

Under the current federal law, if a party violates Rule 11, the judge has the discretion to impose sanctions. In Texas state courts, our comparable Rule 13 of the Texas Rules of Civil Procedure makes the imposition of sanctions mandatory, but there are restrictions and caveats, and sanctions are rare.

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During the past 35 years, I have represented countless parents in wrecks where their children were unfortunately injured. Until a child reaches the age of 18, he or she cannot receive any money from a verdict or out-of-court settlement. As a result, a guardian ad litem must be appointed by the court to protect the legal interests of the minor.

I help children who have been injured in automobile or truck wrecks recover compensation for their injuries.  In addition, courts have appointed me as a GAL on many occasions to assist in other injury attorneys’ cases. 

I take especial care when I represent children who have lost their parents in automobile and truck accidents.  I am working on a tragic case now where the mother was riding on the back of her boyfriend’s motorcycle and was killed, leaving three children in two states. One also doesn’t have a father so we are trying to make sure his future needs are taken care of. I got the grandparents to graciously agree to forego their share of the insurance policy they were entitled to so that the children will each receive one-third, not one-fifth, of the available funds.

I consider not only whether the dollar amount is fair but the most appropriate means of delivery. For example, I often recommend establishing a structured annuity so the funds grow and are protected until the child reaches adulthood and can responsibly manage her or his own finances. It is a mistake to give an 18 year old all of his money on that date, so payment schedules are critical. Hopefully the student will attend college and have money available for tuition, books, and room and board.

If the motor vehicle crash results in a disability, a special needs trust allows a person with a disability to access the money without jeopardizing his Social Security disability benefits. 

These kids have a right to have ethical, knowledgeable legal representation. They deserve to be treated with respect and compassion during a difficult time and to know that their future is secure.

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Understanding Texas At-Fault Damages Rules

Whether you are entitled to compensation for your accident injuries, how much and from whom in Texas depend on several factors. First, what type of insurance do you carry? Was the accident your fault? If so, how much were you to blame? 

Texas is an at-fault state, which means if you sue somebody for damages, you must prove that the person caused your car crash and that you did not. However, even if you are partly to blame, you may have options for recovery for your injuries and other damages.

What If You Are Only Partly At-Fault?

Often, both parties contribute to the automobile accident. In this case, each party is responsible for the amount of damages she or he caused. But, you cannot collect any damages if you are more than 50 percent at fault. This system of allocating damages is called the modified comparative fault rule or the 51 percent bar rule. 

So, if you are found to be 50 percent at fault, you are entitled to damages from the other party, but only 50 percent of your damages. Likewise, if you are found to be just 10 percent at fault you are entitled to 90 percent of your damages. However, if you are found to be 51 percent at fault, you cannot collect anything, but you must only pay 51 percent of damages to the other party who sues you for the accident. 

To further illustrate how this rule works, imagine that you sustain $100,000 in damages in a car crash, for which you are found to be 10 percent at fault. You have the right to $90,000. However, if you are found to be more than half responsible for the accident, the other party owes you zero damages. 

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