Houston Personal Injury Attorneys – Smith & Hassler

Leo Linbeck, Jr., a senior chairman for lobby group Texans for Lawsuit Reform, has authored an article published in the May 19, 2011 issue of the Houston Chronicle extolling the virtues of HB 274, otherwise known as the “loser pays” bill. You can read the full article here. Part of Mr. Linbeck’s analysis of HB 274 in the article reads as follows:

“HB 274 also amends Texas’ current offer of settlement law to encourage parties in a lawsuit to make reasonable settlement offers earlier in cases rather than later. Since most cases settle, it will save everyone time and money if we can encourage this to happen earlier. The idea behind the offer-of-settlement law is that if either side turns down a reasonable offer to settle, it might have to pay the other side’s litigation costs after the offer because it is at fault for keeping the lawsuit going and continuing the cost of time and money. HB 274 makes the risk of paying litigation costs for both sides equal.” (Emphasis added).

This analysis of HB 274 is flawed. The risk of paying litigation costs is not equal for both sides. In order for either side to be exposed to paying the other side’s litigation costs, the Defendant must invoke the provision of the “loser pays” statute. See, Texas Civil Practice & Remedies Code Sec. 42.002(c): “This chapter does not apply until a defendant files a declaration that the settlement procedure allowed by this chapter is available in the action. If there is more than one defendant, the settlement procedure allowed by this chapter is available only in relation to the defendant that filed the declaration and to the parties that make or receive offers of settlement in relation to that defendant.”

If the Defendant files a declaration and thereby invokes the statute, the Plaintiff can respond in kind and inform the Defendant that if the Plaintiff proceeds to trial and recovers greater than 120% of the settlement offer, Plaintiff can recover her litigation costs. The critical part Mr. Linbeck’s analysis misses is that under HB 274 the Plaintiff does not have the opportunity to invoke the statute when the Plaintiff wants to: the Plaintiff can only respond to the Defendant invoking the statute.

This creates a situation where the Defendant can stonewall, delay, behave unreasonably and make no genuine good faith effort to settle the lawsuit, then at the eleventh hour make a settlement offer and invoke the loser pays statute. If the Plaintiff then responds in kind and invokes the statute too, under HB 274 the Plaintiff can only recover her attorneys’ fees incurred after the Plaintiff invokes the statute. The problem with that is by then the damage has already been done: due to the Defendant’s stall tactics the Plaintiff has already incurred significant attorneys’ fees that, no matter what the outcome at trial, the Plaintiff cannot recover under HB 274.

Contrary to Mr. Linbeck’s analysis that HB 274 makes the risk of paying litigation costs for both sides equal, the Defendant has no risk of incurring any of the Plaintiff’s litigation costs unless the Defendant invokes the statute in the first place, and even if the Defendant does so, what the Plaintiff can recover for attorneys’ fees can be strategically limited by the Defendant choosing to invoke the loser pays statute late in the lawsuit.

Mr. Linbeck’s analysis also ignores that there is commonly a huge disparity between Plaintiffs and Defendants in terms of the ability to absorb the risk of incurring the other side’s litigation costs. If the Plaintiff is a private individual and the Defendant is insured by Allstate, Farmers Insurance or some other multi-billion dollars insurance company, being responsible for the Defendant’s litigation costs could financially ruin a private individual Plaintiff yet to an insurance company is not even a bump in the road. As such HB 274 sets up a tremendous inequality in risk.

Contrary to Mr. Linbeck’s analysis HB 274 does not create  equal risk for both sides. HB 274 gives yet another strategic advantage to Defendants.

Five workers have been burned in an accident at the TXI Cement Company plant in Midlothian, three of them were burned critically. The plant is in North Texas near Dallas. In a statement issued last night, TXI said it had few details about what happened but the men suffered their burns while doing maintenance work in a kiln in the main processing area of the plant. The three workers with the worst burns were air lifted to Parkland Memorial Hospital in Dallas, the two others were taken by ground ambulance. Channel 13 News’ story is here.

If you or a family member have been injured at work, such as in a construction site accident, call Houston-based personal injury attorneys Smith & Hassler for a free consultation regarding your legal rights. Smith & Hassler has represented hard-working Texans injured on the job for more than 20-years.

Michael Sparks has died within 24 hours of crashing his Jeep Cherokee into a bayou in southeast Harris County. The single vehicle accident happened at around 8:35pm near the 10100 block of Bay Area Boulevard. According to investigators the 1995 Jeep Cherokee hit a private driveway and flipped in the air before landing on its roof in the Bayou. Mr. Sparks was pulled out of the Jeep and air lifted to hospital where he died. ABC Channel 13 Eyewitness News’ report states that Sparks was driving erratically before the car accident and that witnesses tried to remove him from the submerged vehicle but couldn’t.

The driver of a stolen car was injured and life-flighted to Memorial Hermann hospital after a collision with an 18-wheeler on FM1960 last night. The 18-wheeler driver was headed westbound on FM1960 when the driver of the white car ran a red light while heading northbound on Stuebner Airline Road. The 18-wheeler crashed into the white-colored Ford car and pushed it about 100 feet, pinning the car beneath the 18-wheeler. Emergency crews had to cut the car driver out of the vehicle: the car he was driving had been reported stolen and the man did not have identification on him. Deputies said the driver smelled of alcohol.

Channel 13 eyewitness news published a very brief report of a car accident last night on Highway 288 at Southmore involving a HPD officer in a marked police car. The officer was headed northbound on Highway 288 when another vehicle cut in front of him and the officer swerved to avoid a collision; after swerving the officer lost control of the car and hit a concrete guardrail causing major damage to the patrol car. The article indicates the officer was not hurt.

Car accidents commonly result in medical bills, lost income from work and a period of time after the accident when the injured person is in pain and is impaired from performing their normal activities. Texas law allows a person injured in a motor vehicle accident by another’s negligence to seek recovery of money damages.  Speaking to an experienced Houston personal injury attorney early in the process can make the difference between a relatively straightforward claim under the other driver’s insurance policy and a real nightmare.  Insurance companies will deny or undervalue claims if they have a reason to.  Smith & Hassler’s trial-tested Houston personal injury attorneys will provide you with a free consultation regarding yourmotor vehicle accident injury claim: call now or submit your case online.

The Houston Chronicle is reporting that a collision between a motorcycle and a GMC pickup truck has taken the life of Joshua F. McLendon. The crash happened at 5200 Louetta in Houston at around 11:30pm on Monday May 16, 2011. Sheriff’s deputies say Mr. McLendon was rushed to Memorial Hospital where he died. According to deputies McLendon was riding a motorcycle westbound in the outside lane of Louetta when the driver of a GMC pickup truck made an unsafe lane change.  McLendon attempts to lay the motorbike on its side to avoid crashing into the truck, but he hit the truck’s rear tire and was thrown off the bike. The investigation of the accident is ongoing.

An editorial in Sunday’s Houston Chronicle referred to HB 274 (the so-called “loser pays” legislation currently under consideration by the Texas Senate) as “tort deform.”  The article refers to HB 274 as an “all-out assault” on the ability of individuals and small business owners to take on big business interests in Texas’ civil courts. You can and should read the Chronicle article by clicking here, and immediately contact your state senator and tell him or her what you think of HB 274. Here is a link to a directory of Texas’ 31 senators.

HB 274 is a major windfall for big business interests and the insurance industry. If HB 274 passes in the senate and becomes law, individuals and small businesses who might otherwise have put their case in the hands of 12 jurors will be put in a situation where they technically win at trial, yet find themselves on the hook for the Defendant’s litigation costs which would include: court costs, reasonable attorneys’ fees, deposition costs and fees for not more than two expert witnesses. The bill will put Plaintiff’s in the position of on one hand risking financial ruin in they choose to go to trial or on the other hand accepting a settlement offer that is too low.

Here are some links to other stories on HB 274 and how it will affect individuals and small businesses in Texas:

Legislature loses its way with ‘loser pays’ blow-up The Dallas Morning News Editorial, May 9, 2010

‘Loser pays’ is false advertising Houston Chronicle, May 10, 2011

Why “Loser Pays” is a Loser Texas Tribune, May 13, 2011

Channel 13 News is reporting a terrible car accident that happened last night resulting the death of a woman. The crash happened around 1:30am on the East 610 Loop in Houston at the Ship Channel Bridge. Police say that a man behind the wheel of a dark blue colored Infiniti G35 sedan was was driving erratically on the southbound loop. At the top of the bridge the Infiniti slammed into the back of a Chevrolet Impala sedan that had a male and female occupant. The severe crash caused a rupture in the Chevy’s fuel tank resulting in the vehicle bursting into flames. The male driver was able to get out of the vehicle and attempted to rescue his sister-in-law but the flames were too severe: tragically the woman died in the burning vehicle. The man was taken to an area hospital with burns and other injuries. By the time investigators arrived the suspect who is alleged to have caused the crash was already gone. According to witnesses, the man called some people to come and pick him up. The man had asked a witness for a ride to leave the scene but the witness refused: the man was last seen running southbound on the freeway. Anyone with information should immediately call the Houston Police Department. The Channel 13 video report appears to show paper or temporary tags on the Infiniti indicating it may have been recently purchased. The fact that the driver of the Infiniti fled the scene would certainly imply that alcohol was a factor in a crash.

Channel 2 News is reporting the death of a 14-year old boy in what appears to be a high-speed joyride taken early in the morning on Friday May 13, 2011. The single car crash happened on Valley View Lane and Mahoning Drive in southwest Houston at about 12:30am. Investigators say there were at least five people in the car at the time it crashed into the tree. The name of the deceased 14-year old driver has not been released. Private vehicles were used to take two 16-year old boys, and two girls one of whom was aged 14 to area hospitals. According to police the 14-year old took his brother’s Honda Civic: the brother noticed the keys were missing and shortly afterward was made aware of the wreck by a teenager who knocked on the family’s door. Police believe the car wreck happened because the driver was traveling at high speed and because of his inexperience.  A video report on the incident is here.

Here is a link to a video report from Channel 2 news about this terrible accident. Wet weather is being partly blamed for a “chain reaction” style collision in Cut and Shoot, Montgomery County, that has left two motorcyclists dead. The bikers were hit by a Ford F150 pickup truck while riding with a larger group of motorcyclists near State Highway 105 near Willis Waukegan Road. The DPS investigation is ongoing. The video report indicates that one accident happened then when others tried to stop they were unable to because of the wet roads and slammed into one another. One of the riders involved in the crash said he was from San Angelo and on his way to a state motorcycle rally in Beaumont at the time of the wreck. A rider named Gary Cox who was interviewed said the car in front of him stopped for no reason, and when he attempted to brake he ultimately wound up in a ditch after trying to correct a slide a couple of times.

If you or a loved one has been injured in a motorcycle accident, call the experienced personal injury attorneys at Smith & Hassler for a free consultation on your injury claim. Of all the motorized transportation types on public roads,motorcycle accidents have the highest potential to cause serious injury or death: having a Smith & Hassler personal injury attorney working on your motorbike accident injury claim puts knowledge and experience on your side.