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.

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

Today HB 274 was passed by a 96 to 49 vote in the Texas house of representatives. The bill, which has come to be known as “loser pays,” was a top priority of Texas’ governor Rick Perry and the influential lobbying group Texans for Lawsuit Reform. The issue of tort reform is such a priority for Governor Perry in fact that he declared it a legislative emergency last week, bumping HB 274 to the top of the list and allowing legislators to pass it more quickly. It is interesting that Gov. Perry considered tort reform an emergency matter at a time when Texans are facing a state budget crisis, profoundly affecting (among other things) schools’ budgets for hiring new teachers. Over the weekend the speaker of the house temporarily suspended the house rules, allowing the Republican supermajority to pass HB274 without any debate or amendment (though some debate and a number of amendments took place today before the bill was passed).

The next step for HB274 is on to the state senate. Texas has 31 senate seats, of which 19 are currently held by Republicans and 12 by Democrats. The bill makes it harder for Texans to bring civil lawsuits, and the “loser pays” provision may put a Plaintiff in a lawsuit on the hook for the Defendant’s legal costs, including attorneys’ fees…even if the Plaintiff wins the lawsuit at trial. Supporters of HB274 claim the law will cut down on frivolous lawsuits, opponents say legitimate lawsuits will be discouraged because people with a legal claim will be afraid to file suit in case they lose and are liable for the other side’s attorneys’ fees.

Under HB274, if a Plaintiff takes their lawsuit to trial and the jury awards the Plaintiff less than 80% of the amount of the Defendant’s settlement offer, the Defendant could collect from the Plaintiff their litigation costs, including attorneys’ fees, even if the amount of those attorneys’ fees are greater than the amount awarded by the jury.

Here’s an example: Paul Plaintiff is rear-ended at a stop light by Dan Defendant, a driver who had been drinking.  Paul Plaintiff has $5,000 in past medical bills and Paul’s doctor tells Paul he needs a $20,000 knee surgery to treat his injuries from the accident. Paul files a lawsuit seeking $25,000: his past medical bills and the cost of the knee surgery Paul needs. Dan Defendant’s insurance company offers Paul $15,000 hoping he will take it and give up and go away.  Paul can’t accept $15,000 because that’s not enough to pay for his knee surgery.  The case goes to trial and the jury awards Paul $11,000 because the defense attorney does a good job convincing the jury Paul’s knee problem might be from a 12-year old soccer injury. The defense attorney hired an orthopedic surgeon who routinely testifies on behalf on insurance companies to come to trial and testify and pays the hired expert $10,000 for his time. Dan Defendant’s attorney, the attorney’s junior associate and their paralegal have billed $15,000 taking the case through trial.  Because the amount the jury awarded Paul Plaintiff ($11,000) is less than 80% of the insurance company’s offer ($15,000), Paul Plaintiff now has to pay Dan Defendant’s $25,000 in legal expenses.  Paul Plaintiff gets an $11,000 credit for the amount the jury awarded, but Paul still owes Dan $14,000…for being rear-ended at a stop light by a drunk driver.

Does that mean Paul Plaintiff’s lawsuit against Dan Defendant was frivolous…or brought in bad faith? Of course not. But in terms of Paul’s liability for Dan’s litigation expenses, the justness of his claim doesn’t matter. And that’s HB274 in action folks.

If you don’t like HB274 and you don’t think it should be the law in Texas, contact your state senator while you can. Here is a link to a web site that allows you to enter your address: it will tell you who your state senator is and will allow you to send them a letter via email.

You can find a consumer review web site on the Internet for almost any service profession these days and personal injury attorneys are no exception. Accidents don’t happen very often so personal injury attorneys are not the type of professional the same person uses regularly, like a barber, babysitter or a yard service, so there’s a good chance if you are looking for a personal injury attorney you’re doing so for the first time.

A recommendation from a friend or family member can definitely help you narrow your search. If someone whose opinion you value has had a good experience with a personal injury lawyer, you may have the same good experience. Internet reviews can help too, and are valuable in that they typically span several years and people who write reviews usually do it anonymously so they feel comfortable being up front about how they feel.

Here is the latest review of Smith & Hassler posted to Google on April 19, 2011 posted by a client we represented in a lawsuit against her own insurance company related to an underinsured motorist claim:

I would highly recommend Smith and Hassler!!! The attorney handling my case was Daragh Carter. He was excellent, I couldn’t have asked for a more professional and caring attorney. I was run down by a Ford F-150 and I’m only 4″10″ back on 2/14/2007. The insurance of the driver paid me no problem. Now, my insurance company, Safeco, wouldn’t give me squat!! I had gone through 2 other law firms, when I had just given up. My husband called Smith andHassler and Mr. Carter was on the case. It’s really a shame that you pay your payment to your own insurance company every month and when it comes to them paying, they don’t want to…so you have to take your own insurance company to court. I missed over 4 months from work, had all kinds of xrays, and an mri. I had several weeks of physical therapy, saw several doctors and specialists. I had to take a medical retirement from my job because of the accident and I’m only 35 years old. Even after all this, I still couldn’t get my insurance company to budge. Four years later and after a lawsuit, the case was settled out of court. I would highly recommend Mr. Carter to everyone and already have….thanks Daragh, you rock!!!

Ford Motor Co. is expanding a recall of the popular F-150 pickup truck to include nearly 1.2 million vehicles that may have defective air bags.  The additional recall, announced Thursday by the National Highway Traffic Safety Administration, covers trucks from the 2004 through 2006 model years. An electrical short can cause the air bags to deploy unexpectedly, in some cases injuring drivers.

In February, Ford agreed to fix 150,000 of the trucks but resisted the government’s wishes to recall all 1.2 million trucks that may have the problem. Ford’s F-Series pickup truck is the top-selling vehicle in America, and the F-150 makes up about 60 percent of F-Series sales. Through March, the company sold nearly 127,000 of the pickups. The F-Series also includes heavier duty trucks such as the F-250 and F-350.

Ford said in a statement that it will notify all owners in May that they should take their trucks to a dealer who will replace an air bag wire in the steering wheel. The repair takes less than a half day, the company said. The wire can become chafed, causing a short circuit that can lead to the airbag inflating unexpectedly.

Ford said it knows of no crashes caused by the airbag problem. But NHTSA said in a January letter to Ford that the agency knew of 269 cases in which the air bags deployed inadvertently, resulting in 98 injuries, some serious. The agency noted that Ford made production changes to the trucks in 2006 and 2007 to fix the air bag wiring and other issues.

Ford told NHTSA in May that some drivers reported injuries that included burns from contact with the air bag, bruises, neck and back pain and minor cuts. Two customers reported broken or chipped teeth and two reported elbow or arm fractures.

NHTSA wanted Ford to recall all 1.2 million trucks, but Ford told the agency that the full recall was not justified and said owners got an adequate warning of the problem from the air bag warning light on the dashboard. But NHTSA disagreed and said it could hold a rare public hearing on the matter. “The potential for loss of vehicular control poses an unreasonable risk to safety,” NHTSA told the company. Earlier this week, Ford officially agreed to the full recall.

If you have been injured due to an accidental air bag deployment in a 2004-2006 Ford F150, call Smith & Hassler’s personal injury attorneys to discuss your potential products liability claim.

A bill introduced by Representative Lois Kolkhorst of Brenham that would raise the speed limit on some Texas highways to 85 MPH has been approved by the Texas House. The measure, which was passed on Wednesday April 6th, 2011 by voice vote, is part of a larger transportation bill. The bill would authorize TexDOT to raise the speed limit on designated lanes or entire stretches of roadway after conducting engineering and traffic studies. Texas currently has more than 520 miles of interstate highways where the speed limit is 80MPH. Some automobile insurers are opposed to the measure and say they have safety concerns. Jerry Johns, a spokesman for the Southwestern Insurance Information Service is quoted as saying that speed and alcohol kill most people on Texas’ highways, so increasing the speed limit to 75 or even 85 MPH will have a “dramatic effect on the death and injury rate” on the highways where the measure is implemented. He also said that driving 85MPH on a flat road is “simply ludicrous.”

The Houston Chronicle has reported that the worker killed in yesterday’s plant explosion at KMTEX‘s Port Arthur plant was 58-year old Mr. Johnny Williams of Groves, Texas.  Another online media report says that OSHA will visit the plant to determine how and why the deadly explosion happened. Under the heading “quality” on the company’s web site, KMTEX states that: “KMTEX complies with mandated and governmental standards involving health, safety, and environmental measures. We are responsible business professionals, fully prepared to meet the standards of our customers.”

ABC Channel 13 News has posted a brief report on an explosion at the KMTEX chemical plant near Port Arthur, Texas that has injured 3 workers and killed one worker. The incident happened around 2:00PM on Thursday March 31, 2011.  Apparently an explosion was followed by a flash fire. A Jefferson County Sheriff’s Deputy named Rod Carroll is quoted as telling KFDM-TV of Beaumont that the explosion involved gasoline that was being processed. Another statement credited to Jefferson County Emergency Management Coordinator Greg Fountain was that a 500 barrel fuel tank had exploded. Two of the injured workers were airlifted, one to Memorial Hermann Hospital and one to John Sealy Hospital in Galveston. Another was taken by ambulance to Christus St. Elizabeth Hospital in Beaumont.

KMTEX’s web site identifies the company as a specialist in the custom processing of petrochemicals, speciality chemicals, oleochemicals, agricultural chemicals, and food grade chemicals. The plant is located at 2450 S. Gulfway Drive, Port Arthur, Texas 77641.

KMTEX chemical plant near Port Arthur, scene of a deadly explosion on March 31, 2011

The Houston Chronicle also provided coverage of the KMTEX explosion. The Chronicle article indicates authorities will be investigating how a flammable solvent remained in a pipeline workers were welding when the explosion occurred. According to unnamed witnesses, one of the workers was welding a pipeline that contained coal tar naptha solvent when the fire occurred: the workers thought all of the solvent had been evacuated from the line. Naptha is a by-produce of crude oil and is highly flammable. According to authorities, one of the injured workers suffered a head injury and another had fractured legs.

Our thoughts are with the friends and family of the deceased worker and the three men injured in the blast. Smith & Hassler believes that the hard-working men and women of the Houston energy industry deserve a safe working environment and should be able to expect to return home safely at the end of each work day. If you or a loved one has been hurt in a plant explosion, call our experienced personal injury attorneys right away.

Texas lawmakers are considering whether to ban texting while driving across the Lone Star State. There are 10 bills that have been filed in Austin: Senate Bill 138 would ban texting while driving except when using a hands-free device. House Bill 93 provides for a penalty of up to $200 for texting while driving, and another bill (HB103) doubles that fine in school zones. A Channel 11 News article however reports that the various bills don’t seem to be getting much traction and suggests a couple of possible reasons why: telephone company lobbyists or lack of public interest. In the Houston area six cities have banned texting while driving recently: Conroe, Missouri City, West University Place, Bellaire, Alvin and Galveston. Missouri City‘s ban has been in effect since last June, so for about 10 months, however thus far Missouri City P.D. has issued only 5 citations for texting while driving. Only 11 citations have been issued in Galveston and none have been issued in West University Place.

Channel 11 News is reporting that a man who died in a tragic fall from a rollercoaster at the Houston Livestock Show & Rodeo on Sunday evening has been identified as 47-year old Brian Joseph Greenhouse. Houston Livestock Show & Rodeo Chief Operating Officer Leroy Shafer confirmed Mr. Greenhouse died when he fell 28 feet from the Hi-Miler rollercoaster. CPR was attempted at the scene but sadly Mr. Greenhouse was pronounced dead at Memorial Hermann hospital. As Mr. Greenhouse fell he hit a 44-year old man who suffered a broken ankle.

The Hi-Miler rollercoaster involved had both a lap belt and a locking safety bar: it is not thought that either of these safety features malfunctioned because both were still in place after the accident. According to Shafer the Hi-Miler ride, owned by carnival operator RCS since 1980, does not have a history of any serious problems. There has been only one reported injury on the ride since 1980 when a rider’s head hit the safety bar and they suffered a broken nose and cheekbone.

In 2010 riders got stuck on the Hi-Miler when a crank shaft bent and automatically shut down the rollercoaster: riders were stuck for about 45 minutes. A Youtube video shows carnival workers climbing onto the ride, the video is dated 03-21-2010. Mr. Greenhouse’s fiance was also riding the coaster sitting two cars behind him when he fell: no witnesses have been identified who saw Mr. Greenhouse fall as the coaster made a turn. Houston Police Department’s homicide division has taken over the investigation into the cause of Brian Greenhouse’s death.

The Houston Chronicle’s story on Mr. Greenhouse’s death is here. The Chronicle reports that nobody was monitoring the Hi-Miler ride at the time Mr. Greenhouse fell, however industry standards require such rides be monitored from start to finish. Mr. Greenhouse was one of five children, lived in Houston and worked for AT&T. The Chronicle reports that the Hi-Miler rollercoaster is owned by Ray Cammack Shows, Inc. of Arizona, which as contracted to run the Houston Rodeo’s carnival for the past 12-years.

ABC Channel 13’s story is here. Channel 13 states that its reporters spoken to a woman who rode the Hi-Miler last week with her 6-year old son and the safety latch came undone. The woman is identified in the article as Myra Rock. Ms. Rock told Channel 13 that during the ride she had to hold down the bar and hold on to her son at the same time, and that she reported the defect to the operator when she got off the ride, and the operator said he would take care of the problem.

Mr. Greenhouse was described by a family member in one article as a hard-working, Christian man. Our sympathies go out to Mr. Greenhouse’s fiance and family members.