Houston Personal Injury Attorneys – Smith & Hassler

A Texas Appeals Court has issued a ruling that appears to depart from well established precedent. It has long been the law in Texas that a pet owner can only recover the market value of a pet, such as a dog, that has been killed. In the case of a mutt adopted from the animal shelter, the market value may not amount to much more than $100, but of course the value of a treasured pet to the owner is much more. The recent decision was that a pet owner could recover for the sentimental value of the pet.

The case was brought in Fort Worth by a couple whose 8-year old dog was accidentally euthanized by an animal shelter. After the appeals court’s decision, Randy Tuner, lawyer for the couple Jeremy and Kathryn Medlen, said this would be the first time in Texas that someone could sue for the sentimental value of a pet. A lower court had previously dismissed the Medlen’s lawsuit over the death of the Labrador mixed breed “Avery” saying they could only sue for Avery’s market value.

The Second Court of Appeals disagreed, saying that sentimental damages can be recovered for all manner of personal property, which would include an animal. In an 11-page opinion the Fort Worth Court of Appeals wrote: “”Dogs are unconditionally devoted to their owners. Today, we interpret timeworn supreme court law in light of subsequent supreme court law to acknowledge that the special value of `man’s best friend’ should be protected,”

Avery escaped from his owner’s backyard in 2009 and the city’s animal control picked him up. The Medlen’s found him at the shelter the next day, but Avery was put on the list of dogs to be euthanized in error. If the Chuck Silcox Animal Care and Control Center doesn’t appeal the ruling to the Texas Supreme Court, the case will likely be sent back down to the trial court to be considered on its merits.

The case is Kathryn and Jeremy Medlen v Carla Strickland, Cause No. 02-11-00105-CV and was appealed from the Tarrant County Court At Law No 1. The Court of Appeals opinion can be read online here. Carla Strickland was the shelter employee who incorrectly placed Avery on the list of dogs to be euthanized.

In September 2011 Smith & Hassler filed a personal injury lawsuit in Harris County Civil District Court against a Houston man insured with Empower Insurance. The lawsuit relates to a four vehicle collision earlier this year. The driver insured by Empower Insurance, driving a Chevrolet Suburban, made a right turn on a red light at an intersection without stopping first to make sure the intersection was clear. The Empower insured caused a collision with another vehicle (“vehicle 2″) lawfully traveling through the intersection on a green light. Vehicle 2 then collided with two more vehicles waiting at a signal to make a left turn (“vehicle 3″ and “vehicle 4″). The major crash was investigated by the police who issued a citation to the Empower insured and found him at fault for failure to yield the right-of-way. Smith & Hassler’s clients were in vehicle 4, at a complete stop and waiting to make a left turn when they were struck by vehicle 2. The injured clients are two adult females, an adult male and a child.

One of the adult females represented by Smith & Hassler went through physical therapy for a shoulder injury and when her condition didn’t improve, she was sent for an MRI of her shoulder that revealed a full thickness rotator cuff tear, a condition that typically requires surgery to repair it. She was seen by a board certified orthopedic surgeon who recommended a surgery on her shoulder to repair the torn tendon. The anticipated cost of the surgery was approximately $30,000.

Smith & Hassler attempted to settle these clients claims with Empower Insurance without having to resort to a lawsuit. Empower was sent the clients’ medical records, medical bills and in the case of the client with the rotator cuff tear they were also provided with her MRI film on CD-ROM. In addition to the approximately $13,000 in medical bills she had already, she was also facing the $30,000 cost of the shoulder surgery. Empower Insurance responded with a settlement offer of $11,000…not even enough to cover the past medical bills.

The lawsuit against the Empower Insured was filed within 14-days of the unfair settlement offer. Empower Insurance is based out of Fort Worth, Texas: you can read reviews of them online here: the reviews speak for themselves.

If you were injured in an accident that was caused by the negligence of a third party, and some or all of your bills are paid by health insurance, your health insurance company may claim a lien against any insurance settlement you get from the third party that injured you.  Basically the health insurance company wants to get their money back out of the settlement.  Their lien would be up to the amount they paid toward your medical bills (but no more than that).

There are two types of health insurance plan: ERISA plans and non-ERISA plans.  The fundamental difference between the two types is who ultimately pays the bills.  In an ERISA plan the medical bills are paid by the employer providing the health insurance coverage, but the plan may be administered by someone like Blue Cross Blue Shield, Aetna or Humana.  In an ERISA plan the health insurance company (e.g. Aetna) administers the plan and handles claims, but at the end of the day the employer pays for the medical treatment.  In a non-ERISA plan, the health insurer (not the employer) pays for the treatment.

The difference between ERISA and non-ERISA health insurance plans matters because as a matter of federal law, an ERISA health insurance plan is entitled to dollar-for-dollar reimbursement of their lien out of the third party settlement proceeds.  Put another way, if an ERISA plan pays $1,000 on a hospital bill you have due to a car accident, the plan is entitled to get paid back $1,000 out of your car accident settlement, and if they don’t want to reduce their $1,000 lien they don’t have to.  If a non-ERISA plan however, the health insurer is more likely to agree to reduce the lien.

Health insurance companies are able to take out a lien against your recovery because they wrote subrogation language into your health insurance contract.  Your health insurance contract is probably many, many pages in length.  Buried somewhere in the contract is a subrogation clause that says, in essence, that if the health insurance plan pays your bills because a third party injured you, the plan is entitled to get reimbursed out of any settlement you get from the third party. Health insurers usually use a third party service to administer their liens, such as ACS Recovery, Benefit Recovery, The Rawlings Group and others.

Health insurance companies do not always pursue their lien by notifying the injured person’s attorney or the third party’s health insurance company however.

Please note that special rules apply if medical bills are paid by Medicare or Medicaid as opposed to other private health insurance.  Medicare and Medicaid liens must be paid out of the third party settlement proceeds, and if the third party’s insurance company (GEICO, Allstate, etcetera) thinks there may be a Medicare or Medicaid lien, they will not release any settlement proceed without something in writing stating the amount of Medicare or Medicaid’s lien, or alternatively they will name Medicare or Medicaid on the settlement check.

Candidates for the Republican nomination to run for President in 2012 debated last night, September 12, 2011 and Texas Governor Rick Perry had some interesting commentary on trial lawyers. Governor Perry told the audience that 1 million jobs had been created in Texas under his watch, during which time he implemented tort reform and “kicked trial lawyers out of the state.” As a matter of fact, Gov. Perry specifically told the other candidates (which include two currently sitting governors) to kick the trial lawyers out of their states.

What an interesting philosophy. Trial lawyers are the mechanism through which Texas families have access to the courthouse and the ability to redress their grievances against infinitely more powerful and wealthy foes such as giant corporations or insurance companies with billions of dollars in revenue. It can fairly be said that the right to a jury trial and the ability of a regular citizen to access the courthouse is a cornerstone of American democracy. Why does Gov. Perry want to kick out all of the trial lawyers and how does that help Texan families? The answer to part of that questions is that it doesn’t help Texan families, it hurts them.

The answer to the other part of the question is probably a lot more complex. To help you understand what might motivate Governor Perry to clean house of trial lawyers, you might read Patti Hart’s September 10, 2011 article in the Houston Chronicle documenting the history of the Texas Residential Construction Commission (TRCC).  Houston home builder Bob Perry of Perry Homes (not related to Gov. Rick Perry) has donated more than $2.5 million to Gov. Perry during his tenure as Governor of Texas. Bob Perry was a major advocate of the TRCC during its existence from 2003-2010. One month after Bob Perry donated $100,000 to Governor Rick Perry’s campaign, an attorney named John Krugh, General Counsel for Perry Homes, was appointed to serve on the TRCC. Criticism of the TRCC was plentiful and many viewed the organization as little more than a barrier to the courtroom for Texas families dissatisfied with shoddy building work.

Smith & Hassler filed a lawsuit in Harris County Civil District Court this week on behalf of a Houston couple who were injured in a November 2010 collision caused by a fleeing felon.  The car accident happened as the couple drove through an intersection on a green light.  The at-fault driver, who was traveling at a high rate of speed while being pursued by an HPD patrol car, ran a red light and smashed into the couple’s Ford Explorer SUV, causing the severe damage shown below. The wife riding in the Explorer was 33-weeks pregnant with the couple’s fourth child at the time of the accident and was transported from the scene by ambulance. The insurance carrier for the at-fault driver was offered an opportunity to settle the claim outside of a lawsuit by offering their insured’s policy limit, but declined to do so.

Damage to Smith & Hassler's client's Ford Explorer SUV

When people think about a judge they often think of a stern, black-robed figure who does a lot more talking and reprimanding than he does listening (think Judge Chamberlain Haller played by the late Fred Gwynne in My Cousin Vinny). That’s why Harris County jurors find it refreshing to perform their civic duty in the 215^th Civil District Court, presided over by Judge Steven Kirkland.

During a July 2011 event launching Judge Kirkland’s re-election campaign he described his position as Judge of the 215^th as a “job of learning.”  What Judge Kirkland was referring to was the Judge’s continuing role as a student of the law who looks to the attorneys in his courtroom to educate him regarding the specific laws in play in a given case.

Those who have had little exposure to civil lawsuits may imagine a judge to be all knowing, and think it’s the judge’s job to know the law and tell the lawyers what the law is.  Well of course a judge can’t possibly know each and every law and statute in the State of Texas or have instant recall of every appellate opinion or Texas Supreme Court case interpreting the law.  The reality is a judge has to rely on the lawyers involved in a case to research the applicable law and then educate the judge on that law.  Or put another way, part of a Judge’s job is to listen and learn.

Simply put, Steven Kirkland gets that. Judge Kirkland serves the citizens of Harris County efficiently and effectively by expecting the lawyers appearing before him to be prepared, know the law and discuss it with him, all in the interest of keeping the particular case moving along.  This keeps the trial docket moving in the 215^th District Court, which is good for all.

Prior to taking the bench of the 215^th District Court in 2008, Judge Kirkland served as a Judge in the Houston Municipal Court system for 8-years and has presided over 800 plus jury trials in his career, a huge number.  In Judge Kirkland’s view, anyone called for civil jury service in Harris County (whether they end up serving on a jury or not) should leave the experience having learned something about the civil justice system.  If you are called for jury service and find yourself in the 215^th, Judge Kirkland will make sure you understand who’s who, what’s going on and why.

Judge Steven Kirkland will run for re-election as the incumbent judge of the 215^th Civil District Court in November 2012.

Fortunately for Harris County, Judge Steven Kirkland is more of a listener than Fred Gwynne's Judge Chamberlain Haller!

Texas Governor and presidential-candidate-in-contemplation Rick Perry will be in Houston today to meet with Houston-area Republicans for the ceremonial signing into law of HB274, a bill that came to be known as “loser pays.” The stated intention of the law, which was sponsored by state representative Brendan Creighton, is to cut down on junk lawsuits. The law will go into effect September 1st, 2011 and will allow Defendants to push off court costs, deposition costs, expert fees and reasonable attorneys fees onto a Plaintiff. As Smith & Hassler has blogged about previously however, a Plaintiff can take their case to a jury trial, their case can never be deemed “frivolous“, and the jury can still find the Defendant at fault for the Plaintiff’s damages, but if the jury awards less than 80% of a settlement offer made by the Defendant the Plaintiff can be left recovering nothing.

Governor Perry declared the loser pays tort reform a legislative emergency thereby pushing it to the top of the legislature’s agenda during the most recent session. Amid all the back-slapping and grinning during the ceremonial bill signing today it will be interesting to hear if any specific examples are given of the frivolous lawsuits HB274 is meant to deter. We can’t remember a single example being given during hearings when HB274 was voted on by the legislature. You would think if frivolous lawsuits in Texas was a significant enough menace that they constituted a legislative emergency, every state representative who voted to pass loser pays could give you several examples.

The truth of it is, the loser pays law helps insurance companies and big business interests, and hurts access to the courthouse for legitimate lawsuits filed by Texas families and small businesses.

One morning on the way to work you are rear-ended while waiting at a red light.  You are hurt and your car is badly damaged.  Your car was not safe to drive and has been towed to a storage lot.  The driver who rear-ended you apologized at the scene and told you she was at fault.  The police officer who investigated the accident issued the driver who hit you a ticket for rear-ending you and told you the other driver is at fault.

That afternoon you called the other driver’s insurance company and set up a claim.  They said they cannot provide you with a rental car right away.  The accident was clearly the fault of their insured, so why no rental car? You’re without your car through no fault of your own and you are frustrated…is the insurance company giving you the run-around?

The answer is that they are probably not giving you the run around.  Before an insurance company will accept liability for a claim and start doing things that cost them money (like providing you with a rental car), they will want to investigate the claim.  At a minimum they will want to speak to their driver and ask them how the accident happened.  The insurance company will also want to verify coverage, by making sure that their driver’s insurance policy was in effect on the date of the accident and that the person driving was a covered driver under the policy.

Even the most efficient insurance companies typically cannot complete an investigation within hours of a car accident, for example: they may have trouble reaching their insured to get their version of events.  While you have called and reported the claim, and you may have provided your version of how the accident happened which is completely correct and truthful, the insurance company will not make a decision to part with their money based ONLY on your version of what happened.

It is frustrating to suddenly be without your vehicle due to someone else’s carelessness and you have ever right to feel frustrated. But…think of it this way: if you got a bill in the mail from someone you didn’t know saying you owe them $1,000 and you need to mail them a check, you would want to know why they think you owe them money.  You wouldn’t just assume you owe them money because they say so and mail out the check.  You would try to figure out if you really owed the money before you paid.

Try to be patient. Even if you are frustrated, don’t take it out on the insurance adjuster.  There is an old saying: “You catch more flies with honey than you do with vinegar.”  Adjusters are people too, and they are more likely to help out people who are patient and polite than people who scream at them or behave unreasonably.

If you have been injured as a result of a motor vehicle accident, typically the earlier you get sound legal advice, the better. For example, Smith & Hassler strongly recommends you do not give a recorded statement to the other driver’s insurance company.  You can call Smith & Hassler for a free consultation regarding your motor vehicle accident claim and speak directly to our attorneys.  We can help you by talking you through the process and helping you understand what to expect.

Tim Miller, founder of Texas EquuSearch, has filed a lawsuit against Casey Anthony seeking to recover the $112,000 it spent on the search for 2-year old Cayleigh Anthony. The suit was filed Tuesday July 12th, 2011 in Orlando, Florida. Tim Miller spent a month in 2008 searching for Cayleigh. Miller and nearly 4,200 workers and volunteers traveled to Florida to participate. Casey Anthony didn’t report her daughter missing for 31-days and claimed she didn’t know what happened to her little girl. EquuSearch went to Florida to search for Cayleigh because they were asked to come by Cindy Anthony who is Cayleigh’s grandmother and Casey Anthony’s mother. Texas EquuSearch relies on donations for funding and Mr. Miller said he owes it to those who donated money to recoup the approximately $112,000 spent on the search for Cayleigh, which he says is about 40% of the organization’s annual budget. The lawsuit also says that Texas EquuSearch turned down requests for help from 15 other families because they had committed so many resources to searching for Cayleigh.

There has been some speculation as to whether Casey Anthony, acquitted last week on charges that she murdered Cayleigh, may profit from the tremendous media attention to the murder trial, perhaps through film rights to her story or a book deal. So-called Son of Sam laws exist to stop criminals from profiting financially from their crimes, including by selling their stories. These laws often allow states to seize the proceeds of such sales and use the profits to compensate the murderers’ victims. The catch with Son of Sam laws as applied to the Casey Anthony case however is that the accused criminal must be convicted of the crime for the laws to apply. Casey Anthony was convicted of lying to investigators, but whether that conviction is sufficient to invoke any Son of Sam law that applies remains to be seen.

Son of Sam laws notwithstanding, any media outlet that pays Casey Anthony for her story, her time, or anything else, should prepared themselves for a significant public backlash.