Houston Personal Injury Attorneys – Smith & Hassler

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.

A Saturday night crash has left a police officer recovering in the hospital.  Apparently the officer was responding to a call in his patrol car with lights and sirens activated when a Chevrolet Trailblazer SUV traveling on the North Freeway feeder road failed to stop for a red light. Police said the Trailblazer t-boned the side of the police car: police plan to investigate whether alcohol was a factor in the crash. Video (see below) from KHOU shows damage to the passenger side front fender and rear fender of the police car, and damage across the entire front of the silver-colored Trailblazer. ABC’s story on the officer involved accident is here.

If you or your family have been injured by a drunk driver, call Smith & Hassler for a free initial consultation (either in-person or by phone) with a personal injury attorney. All of the litigators at Smith & Hassler have experience handling both claims and lawsuits against intoxicated drivers. Smith & Hassler aggressively pursues compensation for clients injured by the selfishness of drunk drivers. Insurance companies want to settle claims involving drunk drivers EARLY and FOR AS LITTLE AS POSSIBLE. The insurance company knows Harris County juries have little sympathy for intoxicated drivers who hurt others and damage their property. Don’t let an insurance adjuster talk you into giving away your legal rights.

The driver of the Ford Explorer above was killed in a collision on West Road caused by a suspected drunk driver

Drunk driving appears to have claimed yet another life on Houston’s roads after a man was killed in a wreck on West Road early morning, Sunday July 10, 2011. A pickup truck driven by a man speeding on West Road around 2:15am ran a red light and smashed into the side of a Ford Explorer that was making a left turn onto Deer Trail. Sadly the Explorer driver died at the scene and his female passenger was taken to the hospital. The driver of the speeding pickup was taken to hospital in serious condition: deputies say the man appeared to be intoxicated and he may face intoxication manslaughter charges if his blood sample indicates he was legally drunk. ABC News’ story is here.

If you or a loved on have been victimized in an automobile accident, motorcycle accident, pedestrian accident, bicycle accident or truck accident caused by a drunk driver, call the experienced Houston personal injury attorneys at Smith & Hassler for a free consultation. The earlier in your case you call, the better: theinsurance company will want you to settle for a small amount as early as possible and have you sign a release. This will limit the insurance company’s liability and prevent them from having to pay more later. Smith & Hassler’s personal injury attorneys have aggressively represented injured people in the Houston area and throughout Texas for more than 20-years, including bereaved family members bringing wrongful death lawsuits.

The Casey Anthony trial and her acquittal has highlighted a problem. In many states it is either not a crime, or is only a misdemeanor, to not promptly report one’s child to authorities as being missing. Outraged lawmakers are responding to the verdict by proposing Caylee’s Laws that would allow prosecutors to bring felony charges against parents who do not promptly notify law enforcement their children are missing.

Four days after Caylee Anthony went missing, her mother Casey Anthony entered a hot body contest at a Florida nightclub. For the thirty days or so after Caylee was last seen, Casey Anthony spent her time shopping, hanging out with her friends and going to parties. It was Caylee’s grandmother (Casey’s mother) who called investigators when Casey could not produce her daughter, after which Casey lied to investigators and said Caylee had been kidnapped by an imaginary nanny, and Casey was conducting her own search for her child.

Casey Anthony participating in a hot body contest at a club 4 days after her 2-year old went missing

By Friday July 8, 2011 an online petition at Change.org boasted an incredible 700,000 signatures of people calling for changes to states’ laws on reporting missing children. Lawmakers in at least 16 states have proposed new laws to address the problem, including Texas lawmaker State Senator Chris Harris who says he will introduce a new law for Texas making it a felony to not report a child missing within 48 hours. Under current Texas law it is a misdemeanor only for failing to report abuse or neglect. Senator Harris has said he will introduce a version of Caylee’s Law for Texas during the next legislative session in Spring 2013.

You should support the passage of Caylee’s Law in Texas and when it is proposed call or email your legislative representative and tell them you think Caylee’s Law should be passed in Texas.

The last known picture of Caylee Marie Anthony

Casey Anthony smirks as she speaks with one of her lawyers after her acquittal on murder charges

A very sad day today for the Beaumont, Texas police department who lost one of their officer last night to a motor vehicle collision with a fleeing suspect. Beaumont P.D. Officer Bryan Mitchell Hebert, aged-36, was getting stop-sticks from the trunk of his patrol car last night when the 30-year old suspect, whose name has not been released, crashed a 2008 Dodge Nitro into the front of Officer Hebert’s patrol car pushing it backward into the officer. Officer Hebert had been with the Beaumont Police Department for 10-years; he passed away at Christus St. Elizabeth Hospital. Police say the suspect had assaulted his elderly grandmother and mother prior to the crash. The suspect will be facing a capital murder charge and if convicted may receive the death penalty. Beaumont P.D.’s press release is here. The last officer from Beaumont P.D. who was killed in the line of duty was patrol officer Lisa Beaulieu, killed by a drunk driver April 27, 2007 while directing traffic at the scene of a freeway accident.

Police were able to quickly identify the year, make and model of a hit-and-run vehicle that struck and killed a female pedestrian trying to cross FM1960 near Aldine Westfield Road around 3:00am Friday July 8, 2011. 52-year old Rosie Mitchell of New Waverly, Texas was struck by a 2008 Nissan Armada that sustained damage to the SUV’s passenger side headlight, which broke off in the collision. Rose was found in cardiac arrest in the roadway and passed away at the scene. Harris County Precinct 4 Constables investigators are working with a Nissan dealership and using part numbers to identify the owner of the vehicle involved and are also checking area businesses to see if the collision was caught on any surveillance cameras.

Click2Houston.com’s report is here and includes video. While Nissan is a popular manufacturer and there are a lot of Nissan vehicles on Houston’s roads, the Nissan Armada doesn’t appear to be a particularly big seller as compared to other full-size SUVs such as the Chevrolet Tahoe and Suburban or the Ford Expedition. Put another way, there’s not many Nissan Armadas on the road so this one could be easy to spot. Everyone should be on the lookout for a Nissan Armada with damage to the passenger side headlight: if you think you have identified a vehicle matching that description you can call Crime Stoppers at 713 222 TIPS.

With the vehicle owner not yet being identified it is unknown if alcohol was involved, but given that the accident was at 3:00am on a Friday, and that it would be next to impossible for a sober driver to be involved in this accident and not know it had happened, it certainly looks like drunk driving may have played a role.  Either way, any decent person with nothing to hide wouldn’t run down a pedestrian and flee.

A 2008 Nissan Armada - the make and model of vehicle that sustained a broken front passenger side headlight in the hit-and-run collision that killed Rosie Mitchell.

Our sympathies to Rosie Mitchell’s family and friends for this tragic loss. If you, a friend or a family member have been the victim of a motor vehicle accident, Smith & Hassler can help you.

Tragedy struck early morning Wednesday July 6, 2011 when two teenagers from The Woodlands were killed in a collision in Grimes County with an 18-wheeler. Anisha Patel (age 17) and her passenger Robert Gollnick (age 18) were traveling in a Chrysler PT Cruiser when they collided with a big rig around 1:00am. According to police Ms. Patel was heading east of FM2 when she struck the big rig heading southbound on Highway 6. Robert Gollnick was transported from the scene via EMS to College Station Medical Center where he passed away.  Ms. Patel was pronounced deceased at the scene. Both teenagers were properly restrained with seat belts at the time of the wreck: the 18-wheeler driver was taken to the hospital with unknown injuries.

As personal injury trial lawyers we are thankful for the hard work and dedication of ALL the incumbent Harris County Civil District Court Judges and their dedication to the administration of speedy and fair justice. Judge Larry Weiman of the 80th Civil District Court is particularly deserving of a pat on the back for the speed at which he gets cases on his court’s docket to trial.

Harris County, Texas has a very busy civil district court system. For example, yesterday (Wednesday July 6, 2011) there were 67 new civil lawsuits filed in Harris County District Court. Assuming that is a fairly typical number, that’s 24,445 new suits filed in a year. There are currently 24 civil district judges in Harris County, so that’s just over 1,000 new lawsuits annually for each judge.

In civil litigation delay doesn’t do anybody any good. Lawyers want to move their clients’ cases toward resolution and the parties involved typically want to get the case over and done with so they can have some closure and put it behind them. Judge Larry Weiman is a standout in making that happen. Using the one year period beginning June 1, 2010 and ending June 1, 2011 as a sample, statistics on the Harris County District Clerk’s web site show that Judge Weiman tried more jury trials in his courtroom than any of the other civil district judges.  Judge Weiman had 23 jury trial in his courtroom in that time period, as compared to the average number of jury trials across all courts of 12 trials, nearly twice the average.

Judge Weiman also uses a novel method to set cases for trial. After a lawsuit is filed, courts issue what is called a Docket Control Order (DCO) that notifies the Plaintiff and Defendant of important deadlines in the lawsuit, including the trial setting for the case. The parties have no input into when their case is initially set for trial. What Judge Larry Weiman does when a new suit is filed is informs both sides of the lawsuit in writing that they are to work together and create their own Docket Control Order, then present it to the court by a certain date. This gives the parties to the lawsuit the chance to set deadlines and choose a trial date appropriate to the case. For example: in a simple automobile accident case less time for discovery and an earlier trial date would probably be appropriate and would benefit both sides in getting the case resolved sooner. On the other hand a complex commercial dispute with multiple parties will need more discovery time and a trial date that is further out to allow an opportunity to fully develop the case before trial.

Thanks are due to Judge “Flyin” Larry Weiman of the 80th Civil District Court for his hard work and innovations in making the civil justice system in Harris County better for lawyers and parties alike.

Judge Larry Weiman of the 80th Civil District Court, Harris County, Texas

Last week the Texas Supreme Court issued an opinion in the case Aaron Glenn Haygood v Margarita Garza De Escabedo that will have a profound effect on many personal injury lawsuits in Texas.  The opinion is available online here. Before we discuss the Escabedo opinion, here is a little background to set the stage…

In 2003 the Texas legislature, as part of a sweeping round of tort reform, enacted a new statute: section 41.0105 of the Texas Civil Practice & Remedies Code. The statute reads as follows: “In addition to any other limitation under law, recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant.” Since taking effect September 1, 2003 that one sentence long statute has caused all manner of confusion in the area of personal injury litigation in Texas.

The way the statute came to be interpreted by the majority of Texas courts was that in a personal injury lawsuit where the injured person’s medical bills were paid (in whole or in part) by health insurance, the defendant who caused the plaintiff’s injury was only required to pay the plaintiff the amount paid by health insurance, plus any co-pays and outstanding balance, and was NOT required to pay the plaintiff the amount the plaintiff was billed by her medical provider.  Here are two examples:

Scenario A, prior to CPRC Sec. 41.0105 being enacted: Dan Defendant rear-ends Paul Plaintiff at a red light. Paul goes to the hospital for treatment and the hospital bills Paul $1,000. Paul has private health insurance. The health insurance company pays the hospital $500. Paul has a co-pay of $100. The remaining $400 of Paul’s bill is written-off by the hospital as a discount to Paul’s health insurer, who has a pre-negotiated rate with the hospital. Dan owes Paul the $1,000 that the hospital billed Paul. If Paul has to repay his health insurer the $500 they paid on his behalf (as commonly happens), and Paul is reimbursed the $100 co-pay he paid, then there is a $400 upside. That upside goes to Paul.  Prior to CPRC 41.0105 the reasoning was, if an upside should go to anyone it should go to the injured plaintiff, rather than allowing the negligent defendant to benefit from the plaintiff’s private health insurance.

Scenario B, after CPRC Sec. 41.0105 was enacted: Dan Defendant rear-ends Paul Plaintiff at a red light. Paul goes to the hospital for treatment and the hospital bills Paul $1,000. Paul has private health insurance. The health insurance company pays the hospital $500. Paul has a co-pay of $100. The remaining $400 of Paul’s bill is written-off by the hospital as a discount to Paul’s health insurer, who has a pre-negotiated rate with the hospital. Dan owes Paul $600: the $500 paid by Paul’s health insurance company plus Paul’s $100 co-pay. After CPRC 41.0105 was enacted the ultimate effect of the statute was to allow a defendant to benefit financially from having the good fortune to hit a Plaintiff who had private health insurance.

So….CPRC 41.0105 (often referred to as “paid versus incurred”) limited the amount of money a plaintiff could recover for past medical bills when the plaintiff’s health insurance paid their bills. But: did the statute limit what evidence of medical bills the plaintiff could present to the jury? Could the plaintiff present the jury evidence of the full amount the hospital billed, or could the plaintiff only present the jury with the amount paid by health insurance, plus co-pays and balances owed? Prior to the Texas Supreme Court issuing the Escabedo decision last week, the answer was “We’re not sure.”  After the Escabedo decision, the answer is: a plaintiff may only present a jury with the amount paid by health insurance, plus co-pays, plus balances owed, and MAY NOT present the jury with evidence of the amount that was originally billed by the hospital (or other medical provider).

Prior to Escabedo what most civil trial judges in Texas did was to allow the plaintiff to present the jury with evidence of the full amount billed by medical providers, and if the jury awarded the past medical bills in full, the defendant could make a motion with the court post-verdict to reduce the award of past medicals to the amount paid by health insurance, plus co-pays, plus balances owed. After Escabedo however, personal injury Plaintiffs must now redact their medical bills to remove evidence of the full amount charged by the medical provider, and also (presumably) remove evidence of any health insurance write-offs or discounts.

If you have followed along this far you may be thinking: so what? If all the plaintiff can recover is the amount paid by health insurance, plus co-pays, plus balances owed, what does it matter if that is all the jury hears evidence of?  Well it actually does matter, and here’s why.  Firstly Escabedo sets up a bizarre situation where two plaintiffs sitting next to one another in the back seat of a car rear-ended by a defendant get to put on significantly different evidence of past medical expenses at trial if one plaintiff has health insurance and the other does not. Here’s an example to illustrate:

Plaintiff Alpha is sitting in the right hand side rear seat of a car. Dan Defendant rear-ends the car. Plaintiff Alpha is taken to Memorial Hermann who bills Plaintiff Alpha $1,000 for their services.  Alpha has health insurance with Blue Cross Blue Shield.  BCBS pays Memorial Hermann $400. Alpha has a $150 co-pay. The remaining $450 is written off by Memorial Hermann as an HMO discount per Memorial’s agreement with BCBS. Alpha gets to present the jury with evidence of $550 of past medical bills at trial.

Plaintiff Bravo is sitting in the left hand side rear seat of the same car. Dan Defendant rear-ends the car. Plaintiff Bravo is taken to Memorial Hermann who bills Plaintiff Bravo $1,000 for their services; by coincidence Bravo gets the very same treatment and diagnostic tests Alpha gets.  Bravo has no private health insurance so his bill remains unpaid until the lawsuit over the car accident goes to trial. Alpha gets to present the jury with evidence of $1,000 of past medical bills.

Same accident, same hospital, same treatment, same original billed amount, same jury, same trial, but Alpha and Bravo get to present different evidence of damages for past medical expenses to the jury. When it comes to presenting evidence of past medical bills, the Escabedo decision creates two classes of Plaintiffs: those with health insurance and those without.

Here is another reason this matters: rightly or wrongly, juries are known to use the amount of a personal injury plaintiff’s medical expenses as an index or guide when trying to decide how much to award for “general damages.”  General damages include what are commonly referred to as “pain and suffering” damages, which would include physical pain, mental anguish, physical impairment and disfigurement.

Say a personal injury plaintiff sustained a severe back injury after being rear-ended by an overloaded 18-wheeler and had to have a lumbar fusion procedure. Factoring in the cost of hospital admission, anesthesia, hardware and surgeon’s fees, a major procedure such as a lumbar fusion can routinely cost in excess of $100,000.  However, due to pre-negotiated rates health insurers have with hospitals, surgeons, anesthesiologists and other medical providers, the amount ultimately paid for a $100,000 back surgery, factoring in patient co-pays and the amount paid by health insurance, may be closer to $30,000.

If a jury is presented with $100,000 or more in past medical bills for a plaintiff who had a major back surgery and whose spine will never, ever be the same again, and who cannot pursue the hobbies or family activities he or she once enjoyed pain-free, it is a less daunting task to ask that jury to award $100,000 for pain and suffering than if the jury heard evidence of $30,000 in past medical bills.

If the jury heard evidence of the $100,000 the plaintiff was billed by his doctors for the back surgery (as the jury would have pre-Escabedo) an award of $100,000 for pain and suffering would be an award that was the same amount as the past medical bills. If on the other hand the jury heard evidence of $30,000 in past medical bills (as the jury will after Escabedo) an award of $100,000 for pain and suffering would be more than three times the amount of past medical bills (at least, that’s how it would appear to the jury).

Escabedo was a 7-2 decision by the Texas Supreme Court.  The opinion was written by Justice Nathan Hecht and upends long-standing Texas jurisprudence that a negligent defendant who injures a plaintiff should not benefit from that plaintiff’s private health insurance.  Escabedo is a big win for liability insurance companies in Texas and it will undoubtedly save them millions of dollars annually that would otherwise have gone to injured Texans and their families.

So if a drunk driver slams into you and your family late one night in Houston and you’re rushed to the hospital, go ahead and turn over your health insurance card as soon as you get to the emergency room. Just think about all the money you can save the drunk driver or his insurance company, not just on past medical bills, but also on your pain and suffering damages at trial when the jury is presented with evidence of a fraction of the amount the hospital charged to treat you and your family.