Archive for the ‘Legal News’ Category

Texas considers statewide ban on texting and driving

15 Texas families who have lost loved ones to motor vehicle accidents involving texting while driving appeared at a briefing at the Texas capitol building to show their support for the Alex Brown Memorial Act. The bill prohibits drivers from using a cell phone to type, read or send a text message while operating their vehicle, though it would allow a driver to text if they were outside a travel lane and the vehicle was stopped. Fines would range from $25 to $200. The proposed ban on texting and driving would be statewide. There are already some localized bans on using cell phones in school zones. This is the fourth time that Senator Judith Zaffirini has proposed the ban.

Texas Dept. of Transportation data shows that cell phone use causing distracted driving killed 52 people in Texas in 2014, and in 2013 there were 459 fatal crashes involving a distracted driver, of which 56 deaths were caused by cell phone use.

A bill previously passed both chambers in 2011 but was vetoed by Governor Rick Perry. Critics of the proposed ban say that it won’t be effective and people will text and drive anyway. That’s not a very effective argument. You could say the same about speed limits on roads: why have speed limits when people are going to speed anyway. If speed limits were removed some people would drive dangerously fast because there would be no consequences to doing so. Perhaps if there was a consequence to driving distracted by texting, less people would do it and we’d all be safer.

Smith and Hassler personal injury law firm online reviews

Online reviews are an important source of information for anyone looking for products or services, including someone who is looking for a good personal injury attorney. Smith & Hassler is currently rated 4.9 out of 5 stars on Google, based on 42 reviews from former clients. You can read Smith & Hassler’s client reviews here.

Smith & Hassler has four attorneys (Albert M. Hassler, David Swick, Brent Cordell and Daragh Carter) who are Board Certified by the Texas Board of Legal Specialization in Personal Injury Trial Law. The firm has been representing injured people throughout Texas since 1989. In addition to seven full-time attorneys, Smith & Hassler employs 11 full time staff members to ensure client matters are handled as efficiently as possible.

Daragh Carter named to Houstonia Magazine’s Top Lawyers list

Smith & Hassler congratulates Daragh Carter on being named to Houstonia Magazine’s Top Lawyers list for 2013. Daragh has been with Smith & Hassler since April 2006 and practices exclusively in personal injury law. Daragh is board certified by the Texas Board of Legal Specialization in personal injury trial law.

Change may be coming to Texas law on suing for death of a pet

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.

Smith & Hassler files suit against driver insured with Empower Insurance

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.

Health insurance liens and personal injury settlements

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.

Why does Rick Perry want to kick trial lawyers out of Texas and how does that help Texas families?

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 wins car accident jury trial against Allstate

On Thursday August 25, 2011 Smith & Hassler trial attorney Daragh John M. Carter was able to secure a favorable verdict in Harris County District Court for a Smith & Hassler client who sustain a back sprain/strain in a May 2008 rear-end collision. The car accident happened when a female driver in her 20’s, insured by Allstate, was driving on Eldridge near Memorial with her purse in her lap. She had just left the bank and took her eyes off the road to move her purse to the passenger seat. When she looked up it was too late to stop and her Chevy Equinox rear-ended the Plaintiff’s Toyota Tundra. The Equinox sustained heavy damage and was deemed a total loss. Three days after the collision the Plaintiff saw a chiropractor and had a total of 11 visits and claimed 3-days of lost wages. Before suit was filed, while the suit was pending and all the way up to trial Allstate never offered enough money to cover the Plaintiff’s medical bills and continued to deny that the Defendant was negligent in causing the rear-ender. The morning of trial Allstate‘s attorney stipulate to liability, which means the Defense attorney told the jury that his client admitted she was negligent, and that the case was just about money. After a short trial where the only witness was the Plaintiff (the Defendant was unavailable at the time of trial) the jury returned a verdict awarding the Plaintiff his medical bills in full and 2.5 days of lost wages.

Smith and Hassler files suit for couple injured in accident with fleeing felon

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

Judge Steven Kirkland Harris County 215th Civil District Court totally engaged in “Job of Learning”

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 215th 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 215th 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 215th District Court, which is good for all.

Prior to taking the bench of the 215th 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 215th, 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 215th 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!