Houston Personal Injury Attorneys – Smith & Hassler

Monday August 30, 2010: The Houston Chronicle is reporting that a 67-year old woman is dead and her 71-year old husband is critically injured after an early morning car accident with a City of Houston police car. The accident occurred in southwest Houston in the 7500 block of South Braeswood near Braesridge at around 12:30am. The woman and her husband were taken from the accident scene to Ben Taub hospital where the woman died. The names of the couple have not been released. The police officer was taken to Memorial Hermann Texas Medical Center: police say the officer suffered a broken neck, arm injury and a gash to his forehead. The officer, who has been with HPD for about a year, was responding to an urgent call for assistance and was in a marked patrol car at the time of the car accident. The patrol car’s siren and emergency lights were not on at the time of the crash according to police.

Ford has issued a recall for Ford Windstar minivans, model years 1998 to 2003. A total of 575,000 vehicles are affected. The recall is due to possible corrosion problems with the rear axle.  Because cracking problems or axle failure affect vehicle handling, corrosion problems or defects could lead to accidents or injuries. People who own a 1998-2003 Windstar are advised to take their vehicle to a Ford dealership for inspection. Ford states that if the axle shows signs of cracking, owners will be offered a repair and alternative transportation while the repair is performed. If there is no cracking, owners will be offered a reinforcement bracket for the axle. A story is available here, including a Youtube video highlighting the problem.

Ford Motor Company’s official recall notice is here and reads as follows:

Ford is voluntarily recalling older, high-mileage Windstar minivans produced between mid-1997 and early 2003 for rear axles. In a very small number of cases, the axles have fractured in certain locations on the right and/or left side, and affected vehicle handling. We will notify affected owners in the very near future and ask them to bring their vehicles to their local dealers for inspection and any necessary repairs. As always, Ford is committed to responding quickly for our customers.

The recall for the Windstar – which is no longer in production – applies to vehicles in 21 states, the District of Columbia and Canada where road salt corrosion is more common.

Ford dealers at no charge to customers will reinforce the axles of the affected vehicles as parts are available. If it’s determined the axle can’t be reinforced, it will be replaced as soon as parts are available. Ford will provide for rental vehicles for customers until the rear axle of their vehicle has been replaced.

A man was taken to Memorial Hermann Hospital with severe leg injuries after his pickup truck collided with the trailer of an 18-wheeler in Houston on Thursday August 26th.  The accident was south of Reed Road on Alameda Road in Houston. Both vehicles were traveling south when the 18-wheeler stopped to make a left turn and the pickup truck collided with the rear of the trailer. A Houston Chronicle report available here shows severe damage to the pickup truck.

News Channel 2 is reporting that Gina Wiggins has been accused of driving drunk and causing a car accident in Houston that resulted in the death of another driver. Harris County Sheriff’s Office states that Wiggins was driving a Nissan Xterra SUV southbound in the 21000 block of FM2100 in Houston at about 6:15pm on Wednesday August 25, 2010. Detectives say Wiggins failed to stay in her lane and hit a Ford Escort coming from the other direction nearly head-on.  Angela Maxwell, driving the Escort, sustained injuries that proved fatal. Wiggins was transported to hospital where a blood sample was drawn, and she was subsequently charged with intoxication manslaughter and intoxication assault.  Wiggins is being held in the Harris County Jail in lieu of $60,000 bail. The Houston Chronicle’s report is here.

Former Houston-area hand surgeon Michael Glyn Brown, owner of the Brown Hand Center, currently stands accused of assaulting his fourth wife by twisting her arm behind her back.  He was arrested Tuesday August 24th.  Mr. Brown pleaded guilty in 2002 to assaulting his third wife. Mr. Brown is free on $40,000 bail, must surrender his passport and is to have no contact with his wife Rachel Brown.  Mr. Brown has retained high-profile Houston defense attorney Dick DeGuerin. Mr. Brown’s television commercials for his carpal tunnel surgery center are frequently seen by Houston residents: the commercials feature Mr. Brown with his wife and daughters telling viewers that he will care for his patients just as he cares for his own family. Mr. Brown’s medical license was revoked in 2006 after he tested positive for cocaine.  Mr. Brown’s marketing materials state that he personally trains the physicians at the Brown Hand Center. In the 2002 incident, Brown pleaded no contest to an aggravated assault charge for beating his then-pregnant wife Darlina with a bed post. A year before Mr. Brown admitted guilt in the assault on Darlina, a jury hearing the facts of the couple’s divorce awarded Darlina $5.4 million for her injuries, including pain and suffering.

The Houston Chronicle’s story is available here and in less than 24 hours has already drawn 447 comments.

The Texas Department of Transportation compiles a lot of facts and information on car accidents, including factors that contribute to car crashes in rural and urban areas.  In an urban area such as Houston, some of the leading factors contributing to car accidents are:

Failure to control speed, which caused 93,552 total crashes in 2008 of which 358 were fatal crashes and 11,621 caused serious injury
Failure to drive in a single lane, which caused 22,217 total crashes in 2008 of which 257 were fatal crashes and 3,062 caused serious injury
Speeding over the limit, which caused 5,237 total crashes in 2008, of which 256 were fatal crashes and 1,537 caused serious injury
Driving under the influence of alcohol, which caused 10,071 total crashes in 2008, of which 241 were fatal crashes and 2,072 caused serious injury
Driver inattention, which caused 76,276 total crashes in 2008, of which 176 were fatal crashes and 8,805 caused serious injury.

These statistics are compiled from information gathered from police accident reports, a report a police officer completes after investigating an automobile accident.  A portion of a Texas Peace Officer’s Crash Report often referred to as “contributing factors” allows the officer to list his or her opinion as to factors or conditions that caused or may have caused of contributed to the collision.  If you have been involved in an automobile accident and would like advice on how to interpret what the officer has written in your crash report, you can contact Smith & Hassler for a free consultation.

A motorcyclist died in a crash on a Houston freeway on Saturday August 21st, 2010 at approximately 11:35pm.  Police are reporting that a group of motorcycles was traveling south in the 9700 block of the North Freeway. A 32-year old man riding a Kawasaki motorbike was riding in the back of the group when the group sped up to pass a vehicle. The man lost control and was thrown off his bike: he was transported to Memorial Hermann hospital where he died. The man was wearing a helmet at the time. Read News Channel 2’s report here.

It is a common perception that in a rear-end car accident, the rear car that collided with the car in front is always found to be at fault.  While that makes a certain amount of common sense, there is no law in Texas that says the rear vehicle is always at fault, and there are different accident facts where it would be unfair to hold the driver of the rear car responsible in a rear-ender car accident.

Texas Transportation Code Section 545.062 is the statute that speaks most directly to rear-end accidents.  The statute says: “An operator shall, if following another vehicle, maintain an assured clear distance between the two vehicles so that, considering the speed of the vehicles, traffic, and the conditions of the highway the operator can safely stop without colliding with the preceding vehicle or veering into another vehicle, object, or person on or near the highway.” Tex. Transp. Code Sec. 545.062(a).

In plain language this means that everyone driving on public roads in Texas has a duty to keep enough distance from the vehicle in front that, considering speed, road condition, traffic, and so on, the rear vehicle can stop safely without hitting the car in front. This does not mean however that simply because a vehicle hits the vehicle in front, the rear vehicle is 100% at fault for the accident.

We have all had the experience where we are driving on a busy freeway and traffic backs up near a heavily used exit.  Sometimes people will ride the lane next to the exit lane and then cut in at the last minute, usually because they don’t want to wait in the lane that is backed up. If another driver cut in front of you at the last minute and locked up their brakes, causing you to rear-end their vehicle, the other driver would probably be found at fault because they cut you off and interfered with your stopping distance.  Put another way, you were driving at a safe and reasonable speed in your lane and the only reason the accident happened is because the other driver cut in front of you and braked suddenly.  Fact patterns such as this can make for difficult claims unless the driver who cuts you off is completely honest about what they did.  Unfortunately the person who did the cutting-off often seems to forget how they cut-in at the last minute when the police arrive, and will just tell the officer they were rear-ended.  In a situation such as this, an independent witness can be extremely important: the witness can state that they saw the front car cut-off the rear car and cause the collision.

If you were involved in a rear-end collision, whether as the front car or rear car, you can consult with a Smith & Hassler attorney at no charge for advice on your specific case.

This post sets out the typical steps involved in making a claim for damage to your car under another driver’s insurance policy. Remember that every claim is different so some steps may not apply, or some extra steps not listed here may be involved in your claim.

(1) Reporting the claim: you will need to contact the insurance company for the other driver to report the claim and get a claim number. You will need to refer to the claim number each time you contact the insurance company. When you first call, an insurance representative will probably take basic information from you such as: the date and time of the accident, the location, who was driving your car, what kind of car you have, a description of the damage, who was driving the other car, whether the police were called and if anyone got a ticket, a description of how the accident happened, whether anyone is injured or was transported to the hospital, who your insurance company is, and your name, address, phone number, email address and driver’s license number. If you tell the insurance company that you are not hurt, they will hold you to that…even if it takes a day or so for the aches and pains to set in.

(2) An insurance adjuster contacts you: after the initial claim is reported, an adjuster will be assigned to handle your claim. If there is an injury claim in addition to the property damage claim, sometimes both claims are handled by the same adjuster, other times there is a different adjuster for each claim. It can take 24 hours or more after the initial call to report the claim before someone contacts you. If you report a claim on a Friday evening it will probably be Monday before you hear back from an adjuster.

(3) The adjuster investigates the claim: before the insurance company will consider providing you with a rental car or agree to repair your vehicle, they will have to investigate the claim. Put another way, they aren’t going to pay for any of your damages until they satisfy themselves their insured driver is responsible for the accident. At a minimum this usually means talking to their driver to get their version of the accident and also getting your version of the accident. If the other driver tells their insurance company they were at fault, the investigation usually goes fairly quickly. If there is a dispute as to fault though, for example in a red light swearing match, the liability decision may not come as quickly. The adjuster may ask you to give a recorded statement. You should think carefully about doing this. You will be held to your answers and whatever you say may be admissible evidence if a lawsuit ever had to be filed over your accident. Generally speaking Smith & Hassler prefers clients we represent not give recorded statements, particularly if liability is clear. If the other driver’s insurance company does not accept liability quickly, or if there is a liability dispute, you should probably consider talking to an attorney. If you have full coverage insurance on your car, you might also consider filing the claim with your own carrier to get your vehicle repaired sooner rather than later. Your insurance company can always recover their money from the other driver’s insurance company later (including your deductible).

(4) An insurance representative inspects your vehicle: before the other driver’s insurance company can pay for your damage, they need to know what the damage is. If your vehicle is damaged but can be driven safely, the insurance company will probably ask you to take your car to one of their “preferred estimators.” This will probably be a local car dealership that has a collision repair center. During this initial estimate your vehicle will be given a visual inspection and some photographs will be taken of the damage, but also of your vehicle as a whole, probably including pictures of the interior.  The pictures taken of the vehicle (but not of the accident damage) are to document the overall condition of your vehicle, which factors into its value. During this initial inspection, the shop will probably not put your vehicle up on a lift or remove exterior parts such as bumper covers. If your vehicle is not drivable because it is too damaged, the insurance company will send a representative to inspect your vehicle where it is located, usually at a storage lot that it was towed to after the collision.

(5) The insurance company pays you based on the initial estimate: the shop that did the initial estimate will send their report to the insurance company who will issue a check for the cost of the initial estimate. Usually this check is made payable to the registered owner of the vehicle, but who the check is paid to may change, for example if there is a lienholder.

(6) If your vehicle is declared a total loss: a vehicle is declared a total loss when the estimated cost of repair is at or above a certain percentage of the vehicle’s fair market value (or Blue Book value).  For example: you drive a car that has a Blue Book value of $10,000. The estimated cost to repair your vehicle is $11,000. Because the cost of repair is more than the vehicle is worth, the car is a total loss and you would get a check for the market value of $10,000. Unfortunately no matter how much you love your car, or how much you want to keep it, you cannot force an insurance company to spend more to fix a car than it is worth. Sometimes a vehicle is totaled if the estimated repair cost is less than the market value, for example, you have a car with a market value of $10,000 and the estimated repair cost is $8,000.  Because the estimated repair cost is 80% of the value of the car, the insurance company will probably declare it a total loss. Why? Because $8,000 is the initial estimate, and once the body shop starts “tearing down” the car, they usually find additional damage that will add to the repair cost. The cost to fix the additional damage might push the cost of repair over the market value of the vehicle, so rather than risk that happening insurance companies often prefer to go ahead and total a vehicle when the cost of repair reaches a certain percentage of the value. There is no set percentage and different insurers handle the issue differently, but when the repair cost is at or above 70% of the vehicle’s market value, most insurers will total the car. If your vehicle is totaled and you own it free and clear, you will get a check for the market value (Blue Book value). If there is a lienholder, then the lienholder gets paid whatever the amount of the lien is and you get a check for any amount left over. Now for some bad news: if you are “upside down” on your car and owe more than the car is worth, the other driver’s insurance company does not have to pay you what you owe, they only have to pay you the market value.

(6) Decide who is going to repair your vehicle: Texas law says you have a right to decide where to have your damaged vehicle repaired. If you have a newer vehicle or a less common brand you will probably want to take it to the dealership for repair, and you have a right to do that. Insurance companies often like to steer people making claims with them to particular repair shops and often try to sell you on these shops with a promise that the work is guaranteed. They probably want you to use these repair shops because it saves them money. That does not mean these repair shops do bad work, but you don’t have to take your car there for repair if you don’t want to.

(7) Your chosen repair shop assesses the damage: once you decide on a repair shop they will assess the damage. This will involve a more thorough inspection than the initial look-over mentioned above, and usually involves taking parts off the car or putting it on a lift to check for non-obvious damage. Often the shop will find additional damage not included in the initial estimate. This is referred to as a “supplement.” Your shop will contact the other driver’s insurance company and tell them about the supplement. The insurance company may want to send a representative to your repair shop to see the damage for themselves. Assuming the insurance company agrees the supplementary repair is related to the accident and necessary, they will approve the supplement and your repair shop can do the repair. The insurance company will issue a separate check for the supplement payable directly to your repair shop: supplement checks are not made payable to you.

(8) Rental car while your vehicle is being repaired: if your vehicle is damaged but repairable, you have a legal claim for what is termed “loss of use.”  This is simply a claim for money damages for being without your vehicle. Technically the way rental car works is that you go out and rent a car, keep the receipts and submit them to the insurance company for reimbursement. It is often more convenient for everyone if the insurance company provides you with a rental car that is billed directly to them (the insurance company probably gets a discounted rate from the car rental company too). You are entitled to rental car for a “reasonable repair period.” You should talk to the adjuster handling your property damage claim about providing you with a rental car and you should also get a very clear statement from the adjuster on how many days of rental car they are willing to pay for. You don’t want to keep the rental car longer than the insurance company will pay for and get stuck paying the extra days yourself. If a supplement is called in, the insurance company should extend the rental, but call and make sure of this. You are entitled to “basic transportation” which usually means the smallest, least expensive vehicle the rental car company has. The exception is if you need a specific type of vehicle for your employment, for example if you are a plumber and you need a pickup truck, you should be reimbursed for rental of a pickup truck. Again: make sure ahead of time the insurance company will reimburse if you are getting anything other than the least expensive rental car available. If you were provided with a rental car while the insurance company was figuring out if your vehicle was a total loss, and they decide it IS a total loss, then your claim for rental car ends when the insurance company makes you an offer on your totaled vehicle. Remember: if you are in a rental car provided by the insurance company and they tell you your vehicle is totaled, one of the first questions you should ask the adjuster is: “How much longer will you cover the rental car?” Make sure to turn the rental in on time so you are not stuck with additional rental fees.

(9) When your vehicle is repaired: if you drive a newer and/or particularly expensive vehicle, you might consider a diminished value (“DV”) claim. A DV claim seeks compensation for the reduction in market value of your vehicle because it has been in an accident. Damage resulting in an insurance claim will almost certainly appear in a Carfax report on your vehicle, so when you go to sell it or trade it in, you will probably get less money because your vehicle has prior damage. The DV claim seeks to recover some of that loss in value. The proper way to present a DV claim to the insurance company is to have a certified appraiser inspect your vehicle after it has been repaired and prepare a written report to submit to the insurance company. Smith & Hassler can help you with a DV claim.

This has just been a basic discussion of the property damage claim, we haven’t even talked about the injury claim yet! Getting sound legal advice early on in a car accident claim can make a tremendous difference. You can call Smith & Hassler any time for a free consultation and to discuss your car accident case with an attorney.

228 million eggs are being recalled by an Iowa-based egg producer after the eggs were linked to an outbreak of salmonella poisoning.  The federal Centers for Disease Control and Prevention (CDC) has said that eggs from Wright County Egg in Galt, Iowa have been linked to illnesses in Colorado, California and Minnesota.  State health officials say the salmonella-tainted eggs have sickened at least 266 people in California and 7 in Minnesota. The most common symptoms of salmonella poisoning are diarrhea, abdominal cramps and fever within 8 to 72 hours of eating a contaminated product. Salmonella can be life-threatening, particularly to persons with weakened immune systems.