Houston Personal Injury Attorneys – Smith & Hassler

In early April Smith & Hassler’s client, a disabled 73-year old Marine Corp. veteran with a heart condition, was involved in a two-vehicle collision in Harris County with another driver insured by Farmers Insurance. According to the Harris County Sheriff’s Department police crash report, the Farmers insured made an unsafe lane change when he merged to his left, colliding with the client’s pickup truck.  The front passenger corner of the client’s pickup truck was damaged, as was the driver’s door area of the Farmers’ insured’s vehicle.  The Farmers insured was issued a citation by the investigating police officer for making an unsafe lane change.

Smith & Hassler’s client had liability insurance only, so the only way his 10-year old pickup truck (his only transportation) was going to be repaired was if Farmers Insurance accepted liability for the accident and paid the claim. In early May, a month after the collision, Farmers Insurance denied the claim stating their insured had “legal control” (whatever that means) over the center turn lane where the collision occurred. Unfortunately our client’s pickup truck will be sold at auction by the storage lot it was towed to in order to cover the accumulated unpaid storage and towing fees that racked up while Farmers Insurance took a month to make a decision on the claim.

Smith & Hassler has filed a lawsuit in Harris County District Court on our client’s behalf seeking damages for his medical bills, general damages and his totaled pickup truck. Farmers Insurance’s slogan is: “Farmers. Gets you back where you belong.”  Hopefully you will never be involved in an automobile accident with someone insured by Farmers and have to learn firsthand whether the slogan holds true.

Our client's pickup was totaled in an accident with a Farmers insured: Farmers denied the claim.

Channel 2 News is reporting yet another tragic loss of life in Houston due to drunk driving. 35-year old nun Huong Do from the St. Catherine Convent in Houston was involved in a crash at approximately 5:00am Sunday May 22nd at the intersection of Main and Minnesota streets in the city of South Houston. A pickup truck driven by 19-year old Marcos Garza slammed into Huong Do’s Honda Civic, pinning her behind the wheel. Police reportedly said that Garza confessed to running a stop sign at the intersection because he was driving drunk after a night out with his friends. Do was flown to Hermann Hospital in critical condition and on Monday her family made the difficult decision to have her removed from life support. Garza has been charged with intoxicated assault with a motor vehicle and was released on $100,000 bond.

Update: KHOU is reporting today that Garza has been charged with intoxication manslaughter in the death of Sister Houng Do and he appeared in court today. Apparently Garza refused the breath test, so a mandatory blood draw was performed to measure his blood alcohol content. Houng Do was a member of the Vietnamese Dominican Sisters.

Channel 13 Eyewitness News is reporting a major collision involving a milk truck that sent two people to the hospital. The accident happened around 2:30am on Saturday May 21st on Highway 90 at Miller near Sheldon in northeast Harris County. Investigators say that two wreckers had stopped behind a Chevrolet car that had a flat tire on the right shoulder on Highway 90. A wrecker driver was out of his vehicle and was helping two women change a flat tire on the car. A Borden Milk truck approached from behind them in the right lane, traveling eastbound. As the milk truck traveled over the overpass the driver reached for something in the cab causing him to veer to the right, at which time the milk truck smashed into the back of the wrecker, sending it into the other wrecker and striking the wrecker driver standing beside the car. The accident continued as that wrecker was pushed into the back of the Chevrolet, knocking it down a grass embankment and onto the feeder road. The Borden Milk truck flipped on to its side. Both the wrecker driver who was struck and the passenger in the Chevrolet car were air lifted to Memorial Hermann Hospital. The other wrecker driver was sitting in her cab when the accident happened: she was taken by ambulance to an area hospital.

Smith & Hassler’s personal injury attorneys have represented hundreds of Texans injured in 18-wheeler accidents and have significant experience with the special issues in accidents involving commercial vehicles. If you or a family member have been seriously injured in an accident with an 18-wheeler, call 713 739 1250 or 1-800-WIN-WIN1 for a free consultation, or contact us online via our web site.

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.

An 18-wheeler collided with a stolen car that ran a red light

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