Attorney Jay Jackson III

Jay Jackson, a Houston personal injury lawyer at Abraham, Watkins, Nichols, Sorrels, Agosto & Friend, discusses important Texas Supreme Court rulings.

• Hoffstater v. General Interior Construction Inc.
• Galveston Independent School District v. Jaco and UT SW Med Center v. Gentilello
• Whirlpool v. Camacho
• Metro Allied Ins. Agency v. Lin

Transcript

Host: Welcome to the Texas Personal Injury Podcast. Your source of up to date legal information. This week’s topic is Texas Supreme Court, recent rulings. Presented by trial attorney Jay Jackson from Abraham, Watkins, Nichols, Sorrels, Agosto & Friend in Houston Texas. Jay Jackson and I will be discussing ruling on several cases. Thanks for joining us today Jay.

Jay: Glad to be here.

Host: What does the phrase “personal jurisdiction” mean and how has the Supreme Court recently interpreted that issue?

Jay: Personal jurisdiction means that the defendant, the person being sued, has some connection with the state where the law suit is pending. In the event that it is a corporation, the corporation would have to do business in the State of Texas first. A person who is being sued would have had to come into the State of Texas or he would have to do business directly with the state of Texas, so that it is considered constitutional for the State of Texas to exercise authority over that non-resident. There is a recent case called Hafstatter v. General Intension Construction, Inc., it came out on January 15th of this year. In that case, the defendants were individuals who had a corporation that was out of state. They hired some local contractors who hired subcontractors to repair a hotel here in Houston. A dispute developed because they didn’t pay their bill to their local subcontractor. When the underlying contractor who was getting the job paid for, failed to pay the subcontractors, the subcontractors here in Houston wanted to sue the individuals that worked for that company. Texas has a rule that says that when you are paying off the subs you have to indicate that everybody has been paid all of his money, you have to actually sign some paperwork to indicate that, so that they can issue it and subcontractors get paid. The notion is that when the contractor receives the money it is acting sort of like a trust fund. So, therefore, they have to make sure that with this trust fund the subcontractors have been fully paid. In this particular case, the subcontractor didn’t get paid and sued the individuals that were out of state, and said that they mishandled the trust fund and didn’t pay them the money. Well the Texas Supreme Court noted that, although the hotel was here in Houston, and although these individuals that controlled the out of state company made several trips to Houston to supervise the job, it said that these people did not have enough contact with the State of Texas to exercise personal jurisdiction. In this case, what happened was that the contractor did not pay the subcontractor; since the contractor was an entity out of state, the local subcontractor brought suit against them here in state Court. And the Supreme Court said no, Texas Courts will not exercise jurisdiction over those out of state defendants. The effect of it is this: you have a local in-state subcontractor who is hired to do a job here in Houston, but the Supreme Court is saying that Texas courts will not be available to enforce Texas law that imposes a trust fund on the money paid to the general contractor to make sure that the subs get paid. In essence the general contractor is thrown out of court because the Texas Supreme Court is refusing to enforce Texas law against an out of state defendant who has commercial activities in our state.

Host: Has the Supreme Court recently ruled on the defense of governmental immunity in the context of whistleblower cases, and how does that work?

Jay: Yes it has, as a matter a fact, the most recent ruling was February 12th of this year. What’s going on here is a collision of two bodies of law. First off is the notion that the government is immune from being sued. Governmental immunity is a common law principle that came over from England and the idea is that the sovereign cannot be sued by any person in the realm. But because of the hardship that would impose upon people in the sophisticated and complicated modern society, the Texas Legislature, like most states, has waved sovereign immunity in very specific cases. So, typically when a person is injured by the activities of a governmental employee and he brings suit, the government will attempt to say that you can’t sue us, we’re the government, we are going to plead that there is no jurisdiction. One of the unique parts of the law in this area is that the government can appeal an adverse ruling when the trial Court believes that there is jurisdiction, when there has been a waiver of sovereign immunity. So, that is one body of law. The second body of law is a whistleblower act. Now it’s name implies that the whistleblower act attempts to protect people who works for the government or any large agency and reports violations of the law. If a whistleblower sees that a law has been violated and reports it to the correct authority, then the company or the agency is not allowed to punish or demote the whistleblower or fire him, the whistleblower, for that matter. So, in this particular case, the athletic director of Galveston Independent School District found out that a certain football player at Ball High School in Galveston had violated the rules of competition for high school athletes. That set of rules is put out by something called the University Interscholastic League. So, when the athletic director found out that this high school football player had violated the rules, he reported that to the University Interscholastic League. Well, after that, the school demoted this particular athletic director. So he brought suit. As soon as he did, Galveston Independent School District filed what’s called a Plea to the Jurisdiction saying you haven’t proved your whole case. You have to prove that you have actually reported this to the appropriate authority. Now the trial court said he didn’t have to prove his whole case, he simply had to show he had a case under the whistleblower act. The Court of Appeals agreed, but the Supreme Court reversed. It said that he had to show, on the jurisdictional question, that he had reported it to the appropriate authority. So, in other words, from a legal point of view, the consideration for jurisdiction has been blended together with the consideration of liability meaning whether he actually followed the whistleblower statute and was entitled to relief and protection from that act. So, the Texas Supreme Court has blended these two requirements and said that he has to prove his underlying case; if he doesn’t, his claim will be thrown out. And so that would mean that the jury will never get to hear all of the things that the Galveston Independent School District did to him, if he doesn’t prove to the trial court before the jury is ever impaneled that he followed the proper rules and reported the violations to the correct authority. That’s why this case is significant, and several other cases have been decided in a similar vein saying that when you bring a whistleblower case, you have to not only show that you are bringing a case under the whistleblower act against a governmental authority, but you have to prove the elements of that act by showing that you did report it to the correct authority, to the judge before you are allowed to prove it to the jury.

Host: What is discovery in a civil lawsuit and how has the Supreme Court recently ruled upon it?

Jay: Discovery means that each party to a civil case is allowed to find out about the information that the other side has, as well as to preserve evidence for trial. It is the time period after the lawsuit is filed and before it goes to Court, when both parties can interview witnesses and can obtain records and documents from the other side. Discovery is the backbone of modern civil litigation. The idea is that if both sides can understand what the facts will show at trial, there is a good chance that the case can be worked out in advance of trial. In products liability cases where the plaintiff is injured and believes that the product manufactured by a defendant has caused the injury, it’s extremely important for the plaintiff to be able to find out about the other instances where that other product has failed. Now, often times, a manufacture has numerous products that are very similar to one and other, but perhaps of a different product name, or different product designation. So, for instance, a lawnmower that has a certain size engine might be called the “01” model and a lawnmower that has the next size up engine, might be the “02” model. Now, it may be that the defect has nothing to do with the size of the engine, perhaps a wheel falls off, perhaps the engine is unstable. And so for years, when plaintiffs have been trying to get information from the product maker, they have been asking for all information for the same kind of product across its entire line. Defendants, on the other hand, attempt to restrict the product as narrowly as possible and only give information about the very unit that failed. So that’s been a fight that has existed in Texas courts for many years. In a recent case, called In re John Deer, the Texas Supreme Court helped the plaintiff a little bit, but with one hand gave and another hand took away, because it ruled that the trial Courts order was erroneous. Here is what happened. The plaintiff was seeking information about multiple models that John Deer manufactured. John Deer was refusing to give any information about other models. After a hearing, the trial court ordered that the plaintiff would be entitled to get records from similar models. When the plaintiff was originally seeking the records, the plaintiff had limited the time period of the models, but when the Order was actually signed by the Judge, it didn’t contain that limitation. It was evident what years were included in the plaintiff’s discovery request. Nevertheless, the Supreme Court took the case and reversed the trial court’s Order. The Supreme Court said you can find out information about related similar models, but because the Order did not have a time limit written into it, the Supreme Court reversed it and send it back to the trial court, so they have to start all over at that point.

Host: What happens when a insurance agency fails to obtain the insurance request by its customer?

Jay: Well, that very situation occurred in a case called Metro Allied Insurance vs. Lynn. It was decided or handed down by the Supreme Court in December of last year. The situation there was that a certain contract or with the government wanted to have a very specific kind of insurance and he provided all of the information that he needed to his insurance agent. The insurance agent went around and got certain quotes and then he finally settled on a certain policy. That is what he thought he did, but it turned out that the agent had never placed the insurance in the first place, so the man went forward with the contract with the government, but there was a problem that developed. Later, the government brought suit against him on the contract, so the insured, the person that bought the policy he thought was issued, asked to have the insurance company defend him, as the commercial general liability insurance policy would normally do. Well, that was when it was discovered that the insurance agent never bothered to buy the insurance. So, he had no coverage and he lost his case against the government. As a result, he turned around and sued his agency. He went to trial and he won his case against his agency and it went on appeal, and he won the appeal. But it got to the Supreme Court of Texas, and the Supreme Court said, no, we are going to reverse this case. You can’t win. What was the reason? It was because, at trial, the plaintiff in this case, Mr. Lynn, who was the defendant in the underlying case, did not offer evidence of policies that had similar terms to the one that he had requested. It was undisputed what policy provisions he wanted, the agent knew that, but Mr. Lynn came to Court and said, “Here is another policy that is like the one I was trying to purchase. So, the Supreme Court said, that by not offering another policy than the one that he didn’t purchase, in evidence in the trial Court, he was going to lose this case. The Supreme Court said that that was based on causation. That has been a common theme amongst the Texas Supreme Court opinions over the last several years. If you look very closely at the questions of causation, once they believe that they can find the break in causation, the break in perfect causation, then they can throw the case out of court. And that’s exactly what they did here.

Host: That is very interesting and thanks again for joining us. Well that concludes our conversation about Texas Supreme Court recent rulings. For more information, please visit our website at www.abrahamwatkins.com or call us at 713-222-7211 or toll free at 1-800-870-9584. Thank you for joining us today and we hope we’ve been helpful to you.

See Also

http://www.supreme.courts.state.tx.us/historical/recent.asp

Attorney Johnny Garza

Johnny Garza, a Houston construction accident lawyer at Abraham, Watkins, Nichols, Sorrels, Agosto & Friend, discusses incidents at construction sites and plants.

Transcript

Host: Welcome to Texas Personal lnjury Podcast your source of up to date legal information. This week’s podcast is about incidents at constructions sites and plants presented by trial attorney Johnny Garza from Abraham, Watkins, Nichols, Sorrels, Agosto and Friend in Houston, Texas. Johnny and l will be discussing what a construction worker or plant worker should do if their injured on the job. Thanks for joining us today Johnny.

Johnny: Oh you’re welcome

Host: What should an injured construction or plant worker do immediately after an incident occurs?

Johnny: An injured construction worker needs to report his or her injury to their supervisors immediately and when their reporting injuries they need to be very complete if you’re suffering some soreness or tightness most people don’t think that’s something serious or they don’t discuss it or they don’t report it but that soreness and tightness is very very important cause it needs to be reported cause you never know how that soreness or tightness will feel the next day and it could lead to an injury that you don’t think that you’ve suffered at that point in time. So again, everything must be reported. Another thing that an injured worker must do if you’re in a plant assume there is an explosion and the injured worker falls off the scaffold or falls off some type of platform and there are other workers that are next to you sometimes you know them sometimes you may not know them at that point in time. You need to get their names, get their phone numbers because they are witnesses to what happen to you when this explosion occurred. The third thing that the injured worker should do is get treatment. Sometimes when there is an accident at work or there is an explosion the employer will send everybody home and they don’t ask what injuries somebody has serious or not. So the worker just goes home. They’re not knowing what to do so then they show up for work the next day and they begin working and at that point again they haven’t reported an injury and they haven’t sought medical treatment so it’s
important that after the incident occurs the worker goes out and gets treatment if they really need the treatment or their feeling the soreness or tightness if they’ re going to get checked out by the emergency room or their own family doctor or sometimes employers have doctors on site so they need to be seeing somebody that afternoon or that evening or after the incident. I make sure they are seeking treatment.

Host: How would an injured worker make sure that the company they work for or other third party companies don’t destroy any evidence at the incident site?

Johnny: At that point the injured worker needs to contact an attorney to make sure that the attorney contacts the person responsible for causing the incident and the attorney will tell the company responsible that you need to keep the evidence the same exact way. Do not alter it. And so it’s gonna be
a hard balance to juggle because you’re dealing with your injuries but at the same time you need to start looking for legal help so that the evidence can remain intact after the incident and again once you contacted an attorney the attorney will handle the evidence and making sure it does not get alter.

Host: How important is it to investigate if other companies besides your own employer are responsible for the incident?

Johnny: It very important to investigate if other companies are at the job site. Most of the times there are other companies doing different types of work whether it be sandblasters, piperfitters, scaffold builders at a site one of these companies may be responsible for causing the incident so you need to talk to your co-workers, you need to talk to your supervisors and find out who these other companies were and also start asking questions why the incident happen. Start asking which company is responsible for causing this incident. When you get this information write it down somewhere and when you go talk to an attorney it’s extremely important that you tell your attorney about the other companies that were out there and also your attorney will begin its own investigation to find out which companies were out there and cooperate with you with information you obtain from your coworkers and your supervisors.

Host: Should the injured worker give a written statement to their employer and any other company?

Johnny: The injured worker should give a written statement only in his or her words. Do not let anybody else write the statement and again use only your words. Do not let anybody else tell you what to write in your statement.

Host: What about hiring a translator? Would that be a good idea or is the court willing to except in a foreign language?

Johnny: A worker should not let anybody else translate the statement. Because immediately after the incident everybody is trying to get details and you’re not sure who this translator is working for. The translator may have the companies best interest in mind so you go back and make sure the written statement you are providing is in your own words and in your own handwriting and in your signature.

Host: How does workers compensation apply in this case?

Johnny: The employer of the worker usually has workers compensation and what workers compensation does is that it provides treatment for the injured worker so the worker is going to see a doctor. Workers compensation will pay the doctor also if the worker is unable to return to work because
of the injuries workers compensation will pay the worker’s salary up until the point the worker can return to work. Now if the company does not have workers compensation insurance the worker is going to be required to pay for his or her own medical treatment and if the worker cannot return to work she or he will not be receiving a salary and at that point it is extremely important that the worker talk to an attorney and discuss their rights and discuss the incident and discus their injuries.

Host: Should the injured worker go back to work?

Johnny: The injured worker should go back to work if he or she feels healthy enough to work and also if the doctor has released the worker to return to work. Now upon the worker returning to work and the pain or injuries get worse then the worker needs to notify a supervisor and asked to get treatment for
the injuries and also if the worker has a follow up appointment with the doctor the worker needs to tell the doctor the pain has gotten worse or just let them know about the symptoms and how he or she cannot do the work they previously did.

Host: My last question is what should the family do if the worker is killed on the job?

Johnny: The family should contact the coworkers that were on the site and find out what happen and also get the names of other witnesses to the incident. Second thing which is the most important thing is that the family should immediately talk to the attorney so that the attorney can immediately begin doing an investigation and preserve all the evidence.

Host: Well thank you for all of your tips and insight today. That concludes our conversation about incidents at construction sites and plants. For more information please visit our website at www.abrahamwatkins.com or call us at (713) 222-7211 or toll free at (800) 870-9584. Thank you for joining us today and we hope we’ve have been helpful to you.

Attorney Daniel Horowitz III

Daniel Horowitz, a Houston truck accident lawyer at Abraham, Watkins, Nichols, Sorrels, Agosto & Friend, shares his insights and tips on trucking accident liability and insurance coverage.

Transcript

Host: Welcome to the Texas Personal Injury Podcast – your source of up to date legal information. This weeks podcast is about trucking accidents presented by trial attomey, Daniel Horowitz from Abraham, Watkins, Nichols, Sorrels, Agosto & Friend in Houston , Texas. Daniel will be discussing what to do if you are involved in a crash with a commercial vehicle or 18 Wheeler. Thanks for joining us this week, Daniel.

DDH: Thank you.

Host: My first question is, why should someone hire an attorney immediately after a crash with a commercial vehicle or l8 Wheeler?

DDH: The main reason someone should hire an attorney if they have been involved in a crash involving a 18 Wheeler or a commercial vehicle is that the company has attorneys at the scene before the vehicles are removed. I recently spoke to a lawyer who specializes in defending these companies and he told me that he has a team of attorneys around the cotmtiy that are on call 24/7 and whenever there is a crash involving one of their clients vehicles, they are actually flown to the scene
to take statements from the witnesses, meet with the police officers, document and photograph the scene and immediately begin working on the defenses, if any, to the tractor trailer driver’s behavior.

Host: What are some of the different theories of liability alleged in trucking accidents?

DDH: This is a pretty interesting area of practice because there are several ways in which trucking companies and their drivers can be responsible for the accident out on the roadway. This is another reason why it is important to hire an attorney to assist you with these claims. What many people think of when they think of automobile accidents is the owner ofthe vehicle is typically the driver and that person is typically the one responsible, if there is a crash. Well with 18 Wheelers and commercial vehicles, there are lots more moving parts involved. The owner of the vehicle may not even be employed by the company or may not be employed by the person who is hauling the load. The owner of the trailer may be a separate company. Sometimes you have what are called owner-operators who own their own truck but work for someone else. All of these various entities have responsibilities under the Department of Transportation’s regulations that govern the operation and use of tractor trailers on a roadway. There are different theories such as negligent hiring which relates to when a company hires a long-haul or over the road driver and doesn’t properly do the investigation and the tests that are needed Lmder the DOT regulations. Whether it be a drug screen, whether it being doing a background check, whether it be contacting former employers. Those are all necessary requirements before a driver can be hired and put behind the wheel of an 80,000 lb. vehicle. Another theory of liability may be negligent entrustment or negligent in retention. Negligent entrustment means if you know that a driver’s got a history of problems and you put that driver behind the wheel of one of your trucks, you are responsible for those accidents. Last but not least is the theory of negligent retention. It’s similar to negligent entrustment. It means keeping a driver on after they’ve had dischargeable or fireable offenses and still allowing them to operate one of your tractor trailers.

Host: What are some of the driver’s actions that can be considered negligent?

DDH: Driver actions in tractor trailer cases can be a broader scope than a typical auto accident case. Because of the duties and requirements of commercial drivers and
the expanded duties of the Department of Transportation regulations, they are held to a higher standard. Most commonly you run into situations where you have trucks turning left and not clearing the roadway in time and their trailer sticks out into a lane of traffic and you have an impact there. You also have situations that involve tractor trailer driver’s stopping their trucks, either on the side of the highway and not getting off the road completely, or failure to put up any warning devices such as the orange triangles or flashing lights to make sure that drivers of other vehicles can see when the trailer is parked on the side of the road. An up and coming and new theory of liability is what’s called underrides. Many times you’ll see when you pull up behind a tractor trailer, there’s a bar that keeps your car, in the event that you were to rear end that trailer, from going up underneath the trailer. Well there are some product theory liability cases that the trailer should also have those underride protection on the sides of the trailers. So in the event you get in a wreck and hit the side of a trailer, your car won’t go completely under the trailer and then eventually get run over by the rear tandems. Rear end collisions, to kind of tie back into failure to properly put warning signals out if you’re stopped on the side of the road, another interesting litigation theory is when cargo ships, these tractor trailers can be loaded sometimes with up to 40,000 lbs. Of cargo and if not properly secured or properly distributed on the trailer, it can cause the operator to lose control of his vehicle or in worse case scenario, the load itself just falls off onto the roadway and either lands on your car or causes you to take some appropriate action to avoid it which then leads to a crash.

Host: Does insurance cover these claims? And if so, how much coverage is there?

DDH: Insurance is required for a company that’s going to operate a commercial vehicle on the roads of Texas and the rest of the states. The Department of Transportation, again, govems and licenses what type of insurance is required. Another reason to hire an attomey is the web of insurance coverage can be very tricky to understand and until litigation has commenced, the insurance company has no obligation to tell you how much coverage there is. The minimum requirements are $500,000 worth of insurance per injtuy or occurrence, which means basically per crash, you have to have at least $500,000 worth of insurance. Now many trucking companies cany much more insurance than that and some of them carry the bare minimums. There’s another unique aspect to the insurance coverage as it relates to commercial vehicles. It’s the MSC90 endorsement which is an endorsement on an insurance policy that mandates insurance companies provide coverage even to commercial vehicles that may not be specifically listed on the insurance policy. And the reason for that is to protect the motoring public in the event there’s a crash involving the commercial vehicle and force the insurance company and then seek reimbursement from the owner of the company; not punish the individual who’s been injured.

Host: Are the trucking companies really trying to help me when they contact me and my family after a crash?

DDH: Not to sound too cynical but I never believe they are. Trucking companies, like I said at the beginning, are notorious for having people at the scene ahnost immediately. Whether they fly down in their corporate jet and have their investigators and their company reps there to protect the driver and to speak with the police. There job is not to look after you and yom’ family, if you’ve been injured, but to make sure they can minimize the claim as much as possible. What happens sometimes is they will contact you immediately to try to get a statement and then try to resolve the claim at a discoimted rate. Typically when someone’s injured as a result of a commercial vehicle or an 18 Wheeler, the injuries are much more severe than a regular auto crash because of the weight involved of the vehicles. This means longer lasting injuries, more surgeries, more medical bills and the uncertainty of what the future may hold. Ifthe trucking company is able to get you to settle early at a reduced rate, then they can cut off their exposure for any medical bills that you may incur down the road as a result of the crash. So, bottom line is, trucking companies and their corporate representatives are not out trying to help you when they call you immediately after the crash.

Host: So it sounds like the most important takeaway from the day is that the most important thing you can do is really to contact a lawyer to make sure you can get
fair compensation for your claim.

DDH: Absolutely. Without contacting a lawyer and without putting the trucking company on notice that litigation may ensue. They are under no obligation to
retain any of the critical documents that are necessary to successfully prove your case. Those documents include the driver’s log books, the bills of lading, sometimes the qual comm or GPS data that’s involved in the trucks to show how many miles that driver drove within the last 12 hours, where they stopped, what they were doing. Without hiring a lawyer and requesting this information in writing, the trucking company has no obligation to keep it except for a very short period of time. So your best bet is to contact an experienced and skilled law firm such as our own.

Host: Alright well thank you for your time today and sharing that really useful information today. That’s going to conclude our conversation about trucking accidents. For more information, please visit our website at www.abrahamwatins.com or call us at 713-222-7211 or toll free at 1-800-870-9584. Thanks for joining us today and we hope we’ve been helpful to you.

Attorney Brant Stogner

Brant J. Stogner, a Houston, Texas personal injury attorney at Abraham, Watkins, Nichols, Sorrels, Agosto & Friend, discusses the best practices for handling insurance claims. In this conversation, Mr. Stogner answers the question, “What types of auto insurance do I need?” You will also learn the three pillars of auto insurance and how they come into play following a car accident. Other topics include what to do if your insurance claim is denied, common insurance pitfalls and the importance of knowing what’s in your policy.

Transcript

Host:    This week’s topic is insurance claims presented by Brant Stogner, trial attorney
with Abraham, Watkins, Nichols, Sorrels, Agosto and Friend in Houston, Texas. Mr. Stogner and I will be discussing how to handle insurance claims. Thanks for joining us today, Brant.

Brant:    Thanks for having me here.

Host:    My first question is, as a personal injury attorney, what types of insurance
coverage do you think all Texans should have?

Brant:    Very good question. It’s very broad so I am going to try to break my answer up
into several categories. I want to talk first about auto insurance. As everybody knows, in the state of Texas, you must carry liability insurance by law if you are going to drive an automobile on the streets in Texas. Now today, as it stands, the minimum policy limits are 25/50. Now what that means is that each of us has to carry a liability policy, a policy that will insure us in the event that we cause damage to someone else for our liability the minimum policy limits right now is 25,000 per person and up to 50,000 per accident So as a start off, each of us have to carry, if we are going to drive, liability insurance. It is important because this means that if you cause an accident, your insurance company will cover your liability to others. Now this is the minimum amount the 25,000/50,000 – 25 per person 50 per accident. This is the minimum amount. But, in order to protect yourself you should always look at your risks, look at your assets, look what you have that could be seized in a judgment and try to get as much coverage as you can afford. In addition to the liability portion of your auto policy, I want to also talk about personal injury protection benefits. Now personal injury protection benefits come with your auto policy. In order for them to not be there, you will have had to specifically exclude the personal injury protection coverage at the point you got your auto policy. Now most people don’t know what this is but essentially, this is no fault insurance that will protect you and cover your medical bills and your lost wages if you are injured in an accident. Now what makes this unique is that it’s no fault; meaning that if you are in an auto accident and you rear end someone else, so even though it’s completely 100% your fault, but you bang your head on the steering wheel or you hurt your back and you incur hospital bills, your personal injury protection benefits will cover your own hospital bills and some lost wages up to the policy limits even when you’re at fault. So this is an absolute must for every Texan if you’re going to be driving on our streets; from the standpoint of not only do you want to protect yourself from liability but you also want to protect yourself from your own medical payments that you may have to make or lost wages. Now you don’t have to get the minimum here but the average that I’ve seen is $2,500 minimum that most people have on their policies. This limit you can increase and it’s actually quite economical to increase it I’ve seen several of my clients having personal injury protection limits up to $100,000 that really did not have an impact on their premiums that they pay each month. However, for one particular client of mine, she was in a terrible accident, she’s probably 50/50 at fault meaning she probably caused half of the accident, this type of coverage is absolutely vital. And what goes along with personal injury protection, or as we call it in my industry we call it PIP, it’s what the insurance industry calls it as well, but you also want to have under insured/uninsured motorist coverage. Now you’ll hear this referred to as UM/UIM. And just like personal injury protection, just like PIP, UM/UIM coverage is on your policy unless your specifically excluded it Now what this type of coverage does is it’s going to cover you in the event that you’re injured in an accident and the other driver is at fault but the other driver does not carry enough liability insurance to cover your damages. For instance, let’s suppose that the driver rear ends you, he’s DWI but he’s carrying a 25/50 liability policy meaning $25,000 per person injured but you’ve got $100,000 in medical bills. Now you can get the $25,000 from the defendant driver and you’ll probably get it pretty quickly because he’s DWI, but you’ve still got $75,000 in medical bills that are unpaid in addition to your pain and suffering, lost wages, etc. But let’s just focus on those $75,000 that are in unpaid medical bills. If you have UM/UIM protection up to say $100,000, your UM/UIM coverage will cover the difference. That is the difference between the $25,000 that the defendant driver has and your $100,000 in medical bills. There’s a $75,000 difference there but your own policy will step in and cover those medical bills. Now this is in addition to PIP and in addition to the liability limits that you can get from the defendant driver. Now on the flip of that, let’s suppose you get hit by that same DWI driver but he has no insurance. He just absolutely does not have coverage, he’s violating the law, he or she and you’re in a situation where you’ve got a lot of medical bills but there’s no coverage for the defendant. Just like in the situation where they didn’t have enough insurance coverage, the UM portion will kick in at the point when you’re injured in an accident by a driver who doesn’t carry liability insurance. So this is what I would call the third prong of your auto policy – you’ve got the liability prong, the PIP prong and then the UM/UIM prong. But the PIP and UM/UIM prong are designed to protect you and cover your bills and expenses in the event that you’re injured in an accident. Now that pretty much covers the auto policy parts that I think are essential. But being that we all live in the gulf coast, very close and right down hurricane alley essentially, if you’re a homeowner or a business owner, I think it is absolutely vital that you have some sort of windstorm coverage to protect either your home or your business in the event of a hurricane. Because as we’ve all seen, the hurricanes seem to be coming with more frequency and it doesn’t look like they’re going to be letting up and it’s absolutely vital that you have some sort of coverage to what we call windstorm damage. Whenever one of these hurricanes hits or a named storm or a major tropical depression, etc, the argument always comes down to was your damage caused by wind driven rain or was your damage caused by flood? And in order to get the flood coverage, you’re going to have to go through the government. But you can get windstorm, wind-driven rain, we call it windstorm coverage through your either homeowner’s policy or through your business owner’s policy or a business account packages policy. But in any event, that’s one that I feel very strongly about it You absolutely must have windstorm coverage if you’re living either in the gulf coast or operating a business in the gulf coast.

Host:    So what happens after a hurricane? What does the wind do?

Brant:    Well that’s a great question. Let me give you a little bit of background on what
happens from the insurance company’s side. We all know that the insurance company will gladly take your premiums every month, they’ll gladly write you a policy. But what happens in the event of a major storm, like a hurricane, is essentially the insurance companies have written more risks, they’ve insured more locations than they’re really adequately able to cover in the event of a major catastrophe. So what happens when a hurricane hits is you will literally have adjusters being flown in, insurance adjusters, independent adjusters, people who will work for the insurance company that are flown into the state what we call storm chasers and their job is to get out and adjust your claims, look at your damage and report to the insurance company. Now what’s important is that before a hurricane hits, as a business owner or a as homeowner, it is imperative that you look at your policy, determine what type of coverage you have. If you don’t know, I recommend you write your insurance agent who sold you the policy, call them, call the insurance company. You want to find out do I have windstorm coverage. You want to know the answer to this before a hurricane hits and certainly not after. Essentially, if you do have the coverage, when a hurricane hits the first step is going to be reporting a claim to your insurance company.

Host:    And how does somebody report a claim? Before you report a claim, again, you’re going to want to look at the policy. Your insurance policy will likely have information on it that defines the insured, that means you the policyholder, there will be a section within every policy that defines the policyholder’s duties. What are you supposed to do after an event, after a catastrophe, after a peril or a loss that was caused by an insured’s peril. What you wanna do is first and foremost you want to call the insurance company if you’ve got a 1-800 number on the back, you want to call the insurance company and report your claim directly the your insurance company. Now this is not your insurance agent. This is not the person that you met with at the agency who sold you the policy. This is the actual underwriter who’s on your policy. So what you’re going to want to do is make sure you have a copy of the policy, go to the section that deals with how do I report a claim, call mat number, get a claim number, but what’s so important is that you must follow-up in writing. So many of these policies these days are mandating that notice must be given in written form. Now some of the courts will excuse this, some of them won’t. But what’s most important to protect yourself as an insured is not only do you want to report the claim, you want to write them and give them written notice of your claim. By reporting it over the phone, you can get a claim number, you can get confirmation that a person has heard you but I would immediately follow that up with a letter to the insurance company stating the claim number, if you got it from the telephone call, and again giving them notice of the loss location, who you are and doing it in written form. To be extra sure, I would follow-up after reporting the claim both by oral and written notice to the insurance company in addition to that, I would follow-up and report the claim by both oral and written notice to the insurance agency. Now this is the company or person who actually brokered you or sold you this policy. Now most people, they do all their contact with the insurance agency. They never actually communicate with the insurance company; rather all their communications are done through their insurance agent Now that’s fine and that’s actually the normal practice for most people but in order just to protect yourself in this situation, I would recommend written and oral notice to the insurance company and written and oral notice to the insurance agency including your particular agent. This way there can be absolutely no argument that you failed to comply with the notice provisions in your insurance contract. And trust me, the insurance company is looking at every term to deny your claim for any reason they can find. Now that may even be some small technicality in the contract. Trust me, I do this for a living. I’ve seen them fight this tooth and nail on the smallest thing. Be sure you check your policy. Be sure you give them written notice. Be sure you give it to both the insurer and to the insurance agency.

Host:    What if they do deny your claim? What happens then?

Brant:    In that situation where your claim gets denied, you absolutely need to consult a
lawyer. The Texas Insurance Code lays out exactly what the duties are of an insurance company following the reporting of a claim. Now the way it works is after you’ve reported your claim to the insurance company there are certain deadlines that are laid out by the Texas Insurance Code in which they must acknowledge receipt of your claim, they must request additional documents, they must request additional information and if they are going to deny your claim, they’ve got to send you written notice stating specifically what the reasons are that they’re denying the claim and what they base that off of. From there, you’ve got a document that’s going to tell you exactly why they’re denying the claim and what they’re looking for. If you can get that document to your attorney or have an attorney who does free consultations take a look at what’s called either a reservation of rights letter or an outright denial, your attorney can have a good idea at that point whether or not there’s any bad faith involved and whether not this may an action that you can bring in the courts to seek regress. Now in Harris County, especially in Harris County and Galveston County, we’ve seen a large amount of insurance what we call delay and denials. Now it’s also a violation for the insurance company to delay payment of your claim. The Insurance Code lays out with specificity how much time they have to do certain things. So it’s imperative that you keep a written log, keep a document file in which everything you mailed to the insurance company you keep in there, everything you’ve received from the insurance company you keep in there so that your attorney can evaluate whether or not the insurance company has met all the time lines that are laid out in the Texas Insurance Code. This is one of the few statutes that’s actually in favor of consumers, in favor of insureds, regular people in Texas. The Texas Insurance Code has very good terms to help the consumer, to help the policy holder. And it has some very strict time lines for the insurance company with very harsh penalties in the event that they can not comply. It’s important to keep a file, it’s important to keep your hands on every document you’ve sent or received from the insurance company.

Host:    What if the insurance doesn’t do what they say they’ll do?

Brant:    Again, you’re finding yourself right back in what we call bad faith. When you hear an insurance lawyer talk about insurance bad faith, what that means is that the insurance company has either delayed or denied paying a claim when then-liability has become reasonably clear. That means that they should have paid it already, a reasonable insurer would have paid it and they just haven’t done so. At the point they do that, they’ve engaged in bad faith. Now that’s common law. hi addition to that, there’s a whole host of statutory violations that we would call, essentially it’s anytime an insurance company, an adjuster or agent misrepresents a policy, states that there’s a coverage, states any type of misrepresentation with regards to a claim or coverage. Any type of, it doesn’t even have to be an intentional lie, if they tell you something that turns out to not be true, that’s bad faith and its actionable. And what’s so important for everybody across the state of Texas is anytime there’s an insurance violation, the consumer, the policyholder automatically gets their attorney’s fees so it will not cost you to bring a claim against these insurance companies because the Texas legislature has provided for that by allowing you to recover your attorney’s fees if you can show even the smallest violation. Essentially, if the insurance company doesn’t do what they say, you need to contact a lawyer immediately and you need to find a lawyer who’s experienced in handling insurance bad faith claims so that you can make sure that you get everything you’re entitled to with regards to this claim.

Host:    So it seems like a lot of things can go wrong. What are the main pitfalls that
people run into with insurance claims?

Brant:    From my standpoint, I think the main pitfalls that people run into is just they don’t read their policy. I understand that these policies are difficult to read, even for lawyers. It takes us a long time to go through these policies and they cross-reference different places and there’s an endorsement here that must be attached and oh what about this exclusion, it does get pretty complicated. But as a reasonable person, you do need to have some familiarity with what type of coverage you have and with your policy because I’ll tell you why. The Texas Supreme Court has already held, they’ve already come out in a case and told us, that under Texas law the policyholder is deemed to have knowledge of then-policy. Now that’s a pretty scary proposition when these insurance policies are pretty lengthy, written in legalese and their referencing all sorts of exclusions and endorsements. But that’s the law in Texas. So at the very minimum, you need to know what type of coverages you have. You need to know how to assert your rights and I think we talked about some of that today. But if you want to make sure and if you’re not sure what type of coverage you have, the best way is to send written request to your insurance agent that sold you the policy simply asking do I have windstorm coverage? Force your agent to send you something back in writing telling you yes or no. That’s going to come in handy down the road. Keep everything with your insurance policy. Keep it with your file. In addition to generally policyholders not reading the policy, I’ve seen this time and time again and that’s why I wanted to talk about how to report a claim properly. Essentially what I’ve seen is multiple policyholders not complying with the insurance company’s policy. Say the policy requires written notice and the policyholder never does send written notice. They simply call it in on the 1-800 number. Now you may have an argument to be made later that the insurance company had notice, they suffered no prejudice and therefore shouldn’t allowed to rely on the strict compliance of written notice with the policy. But, why get into mat fight? Just to make everything simple, clean and to flow smoothly, comply with the terms of the policy. Now the other thing I’ve seen quite often is the insurance company comes out, they look at the risk, they look at the loss location and then they start requesting documents from the policyholder. At that point, the policyholder is not as quick to get them the information that they needed. The policyholder may even be the reason there’s a delay. The policyholder may have been requested to get all financial information, all inventory data in regards to a homeowner’s claim get me all the damaged contents to your home. It’s imperative that the policyholder move as quickly as possible to get the insurance company what they requested so that any delays down the road can not be attributed to the actual insured policyholder. You want to make sure that you can say, if you’re ever in court in front of a jury, folks we’ve done eveirthing they’ve requested of us and they simply delayed and denied my claim. If you can make that argument with all sincerity, you’re in a good position. And finally, I think the one pitfall I’ve seen people run into and I’ve seen this in my cases as well is they let the insurance company dictate the game essentially. The insurance company comes in, they send their adjuster, the insurance company underwrites the risk, doesn’t give a full estimation of the damages that are out there and then tries to force it down the policyholders throat. Essentially saying here’s all your going to get, this is covered, this isn’t covered and take it or leave it Always remember, you have the right to go consult an insurance attorney who will do a free consultation. You don’t have to do what the insurance company says in this context. Now I’m not talking about when they request for information. What I’m talking about is the point they send you an estimate, when they send you the amount of what your claim is seeking to be closed for. The final check amount Rather than simply let the insurance company dictate the rules, at that point you could take it to an insurance attorney. You could have somebody come out and look at the risk. You could get an independent adjustment done and you could compare what your adjuster says versus what the insurance company adjuster says. And if the insurance company is trying to pay significantly less than what your adjuster has noted, you’re in a situation of bad faith. Now they didn’t delay it, they might not have denied it but them coming in riding a 60% estimate is also bad faith. That is not attempting to effectuate a fair or reasonable and prompt settlement demand. All of this is actionable under the law and is actually in the plaintiffs favor, an insured’s favor, policyholder’s favor in Texas. It’s these things that I think people absolutely need to be aware of before they get involved with their insurance company; especially following a hurricane claim. Because I can tell you the Texas Insurance Code lays out the time line and they absolutely can not comply following a hurricane. They just can’t do it. And that’s why you see so many claims, so many lawsuits in fact in Harris County, Galveston County, Jefferson County, so many lawsuits again the insurance company for essentially committing bad faith.

Host:    Well thank you for sharing so much of your insight with us today. That concludes
our section about how to handle insurance claims. For more information, please visit our website at www.abrahamwatkins.com or call us at 713-222-7211 or toll free at 1-800-870-9584. Thank you for joining us today and we hope we’ve been helpful.

Attorney Jay Jackson III

Jay Jackson III, a personal injury attorney at Abraham, Watkins, Nichols, Sorrels, Agosto & Friend, discusses recent rulings by the Texas Supreme Court and what they mean for plaintiffs. New legislature includes big benefits for employers, while limiting compensation available to victims of work injuries, personal injuries and wrongful death. Other rulings affect the Texas statute of limitations and include new requirements for Texas trial judges.

Case Summaries

Ashley v. Hawkins, 293 S.W.3d 175

After a collision, defendant moved out of state. Plaintiff sued within the limitations period, but did not obtain service until about a year after limitations expired. The Supreme Court ruled that limitations were not tolled even though defendant was out of state, since there was an alternate way to serve her, and that plaintiff did not prove that she diligently tried to obtain service.
Although § 16.063 “suspends the running of the applicable statute of limitations for the period of the person’s absence” from the state, in Kerlin the Supreme Court held that if “‘a nonresident is amenable to service of process under the longarm statute and has contacts with the state sufficient to afford personal jurisdiction . . . then we can discern no reason why a nonresident’s ‘presence’ in this state would not be established for purposes of the tolling statute.’” Because “Ashley committed a tort in Montgomery County, Texas . . . [she] was present in Texas and amenable to service under the longarm statute.” “The general longarm statute not only provided for substituted service, but also established a nonresident’s presence in the state for purposes of personal jurisdiction.” Here, “Ashley was amenable to service under both section 17.062 (service on the Chairman of the Transportation Commission) and section 17.044 (service on the Secretary of State). . . .” “Therefore we overrule Dietz and hold . . . that a defendant is ‘present’ in Texas, for purposes of the tolling statute, if he or she is amenable to service under the general longarm statute, as long as the defendant has ‘contacts with the state sufficient to afford personal jurisdiction.’” Since “we hold that section 16.063 does not toll the limitations period, Hawkins was required to file suit and serve Ashley by” two years after the collision.
“If a party files its petition within the limitations period, service outside the limitations period may still be valid if the plaintiff exercises diligence in procuring service on the defendant. When a defendant has affirmatively pleaded the defense of limitations, and shown that service was not timely, the burden shifts to the plaintiff to prove diligence. Diligence is determined by asking ‘whether the plaintiff acted as an ordinarily prudent person would have acted under the same or similar circumstances and was diligent up until the time the defendant was served.’ . . . [A] plaintiff’s explanation may demonstrate a lack of diligence as a matter of law, ‘when one or more lapses between service efforts are unexplained or patently unreasonable.’” Here, there was no “fact issue as to diligence, as this eight-month gap in time is left unexplained.” “As a comparison, in Proulx, we held that a plaintiff’s thirty-seven attempts at five different addresses over the course of nine months exhibited continuing diligence to preclude summary judgment. . . . In Gant, however, we held that a plaintiff was not diligent as a matter of law where no explanation was offered for gaps in service for three different periods ranging from six to twenty months. . . . [W]hile the time period is important, . . . we must consider the overall effort expended over the gap in service, and whether the search ceased to be reasonable, especially when other methods of service were available.” In this case, “if Hawkins was unable to locate Ashley, or if Hawkins thought Ashley was evading service, other methods of service were available. . . [but] no substitute service such as service by publication was attempted.” “Although service by publication should not be a first resort, when a plaintiff is continuously unable to locate a defendant, its availability should not be overlooked.”

Galbraith Engineering Consultants, Inc., v. Pochucha S.W.3d 863

Homeowners sued builder because of water damage after a rain; builder later designated Galbraith, the engineers, a responsible third party. When homeowners then sued engineers within 60 days, engineers pleaded that the statue of repose barred the suit since they were added more than 10 years after the project. The Supreme Court held that Chapter 33 did not “revive claims extinguished by a statute of repose.”
“Section 16.008 of the Civil Practice and Remedies Code is a statute of repose . . . [that] bars a claim for damages relating to the design, plan, or inspection of the construction of an improvement to real property ten years after the substantial completion of the improvement by an engineer, among others.”
A “responsible third party may include any person who is alleged to have caused in any way the harm for which the claimant seeks damages. When such a designation is made, a claimant may also be able to join that person as a defendant, and, if joinder is sought within sixty days of the designation, limitations cannot be raised as a bar.” But, there are “significant distinctions between” a statute of repose and a statute of limitations. “Statutes of repose typically provide a definitive date beyond which an action cannot be filed.” So, a statue of repose “can cut off rights of action before they accrue.” “[S]tatutes of limitations operate procedurally to bar the enforcement of a right, [but] a statute of repose takes away the right altogether, creating a substantive right to be free of liability after a specified time. Thus, the purpose of a statute of repose is to provide ‘absolute protection to certain parties from the burden of indefinite potential liability.’” Under “section 33.004(e) . . . a responsible third party may be subject to a longer period of repose or none at all, creating an opportunity for revival many months or years beyond the ten-year period of repose prescribed by section 16.008. A products liability claim would be an example of this.”
“The question here . . . is did the Legislature intend for [section 33.004(e)] to operate as a general exception to periods of repose.” “Statutory construction is a question of law we review de novo. In construing statutes, our primary objective is to give effect to the Legislature’s intent as expressed in the statute’s language. If the words of a statute are clear and unambiguous, we apply them according to their plain and common meaning.” But, here, it is unclear “whether the Legislature intended the term ‘limitations’ in section 33.004(e) to apply narrowly to statutes of limitations or more broadly to include statutes of repose.” Therefore, “we may resort to additional construction aids, such as the objective of the law, the legislative history, the common law or former statutory provisions, including laws on the same or similar subject, and the consequences of a particular construction.”
In this case, the “consequence . . . informs our decision.” A statute of repose represents the Legislature’s judgment that a statue of limitations is inadequate.
“The proportionate responsibility scheme of chapter 33 . . . is a complex statutory scheme for the comparative apportionment of responsibility among parties in most tort actions in Texas. Although the scheme initially equated responsibility with liability to the plaintiff or claimant, this is no longer the case. Thus, a defendant may designate a responsible third party even though that party possesses a defense to liability, or cannot be formally joined as a defendant, or both. . . . [Responsible third parties] are defined to include ‘any person who is alleged to have caused or contributed to causing in any way the harm for which recovery of damages is sought. . . .’ [We see] . . . nothing in section 33.004 or the proportionate responsibility scheme to convince us that the Legislature intended to revive claims extinguished by a statute of repose. . . . Because application of the revival statute in this instance effectively renders the period of repose indefinite, a consequence clearly incompatible with the purpose for such statutes, we conclude that the Legislature intended for the term ‘limitations’ in section 33.004(e) to refer only to statutes of limitations.”

In re Columbia Medical Center of Las Colinas, Subsidiary, L.P. d/b/a Las Colinas Medical Center, et al., 290 S.W.3d 204

After plaintiffs lost the verdict in a medical malpractice death case, the trial judge granted a new trial “in the interest of justice and fairness.” The Supreme Court granted mandamus relief. “[J]ust as appellate courts that set aside jury verdicts are required to detail reasons for doing so, trial courts must give more explanation than ‘in the interest of justice’ for setting aside a jury verdict. . . . [It must] specifically set out the reasons for which it set aside the jury verdict and granted a new trial.”
Decedent died two days after entering a hospital with kidney stones. After a four-week trial, the jury returned a defense verdict. The trial judge granted plaintiffs’ motion for new trial, and the defense sought a mandamus requiring him to enter a judgment for the defense or set our reasons for the new trial. The mandamus was abated when a new judge was elected, but he also granted the new trial. “We direct the trial court to specify its reasons for disregarding the jury’s verdict and granting a new trial. . . .”
Mandamus here is appropriate because the circumstances are “exceptional,” like the pre-suit waiver of a jury trial.
“Our decisions have approved the practice of trial courts failing to specify reasons for setting aside jury verdicts. . . [new trial orders are not reviewable except for] two instances: . . . when the trial court’s order was void or the trial court erroneously concluded that the jury’s answers to special issues were irreconcilably in conflict.”
Rules 320, 321 and 322 relate to motions for new trial. “[N]ew trials may be granted for good cause on motion of a party or on the trial court’s own motion. . . . [The] motion must be in such form that the bases for the motion can be clearly identified and understood by the trial court.” “Not more than two new trials may be granted for either party in the same cause because of insufficiency or weight of the evidence.”
Trial courts have “broad discretion in granting new trials. But that discretion is not limitless.” “[N]o court is free to simply substitute its judgment for that of the jury and . . . applying different standards for trial courts and courts of appeals could lead to inconsistent results because a trial court’s decision as to remittitur could stand when the same conclusion by a court of appeals would not.” “[T]he amount of discretion Texas trial courts possess to overturn jury verdicts and grant new trials is broad but has limits, [such as] . . . . for sufficiency or weight of the evidence, [and] when damages are ‘manifestly’ too small or too large, and for ‘good cause.’” Footnote 3: That does not mean “just any cause.” “[G]ood cause” is not defined “in this context, and we do not now undertake to do so. . . . [T]he fact that the right to jury trial is . . . provided for in both the Federal and State Constitutions counsels against courts setting aside jury verdicts for less than specific, significant, and proper reasons.”
“The standards by which trial judges and appellate judges may set aside or overturn a jury verdict are different. . . . [A] trial court . . . [may] set aside a jury verdict . . . on its own motion.” But here, the “trial court’s . . . failing to give its reasons . . . was arbitrary and an abuse of discretion.” It may “grant a new trial ‘in the interest of justice.’” But the “parties and public are entitled to an understandable, reasonably specific explanation why. . . .” “Broad statements such as ‘in the interest of justice’ are not sufficiently specific.”

Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433

Entergy hired IMC, plaintiff’s employer, for maintenance and repair of Entergy’s facilities. Pursuant to a written agreement, Entergy provided workers’ compensation insurance. After plaintiff was hurt, he applied for and received worker’s compensation benefits. He then sued Entergy. The Supreme Court held that Entergy was entitled to the “exclusive remedy” defense (limiting the worker’s recovery to worker’s compensation benefits) even though it was a premises owner and not a general contractor. “We hold that the exclusive remedy defense for qualifying general contractors is . . . available to premises owners who meet the Act’s definition of ‘general contractor,’ and who also provide workers’ compensation insurance to lower-tier subcontractors’ employees.” Here, Entergy qualified.
The “availability and adequacy of workers’ compensation benefits is a purely legislative matter.” For a general contractor to qualify for immunity from suits by the employees of subcontractors, it “must enter into a written agreement under which the general contractor provides workers’ compensation insurance coverage to the subcontractor and the employees of the subcontractor.” Here, as matter of law, the evidence showed that the appropriate Entergy entity satisfied the “written agreement requirement. . . .”
“The meaning of a statute is a legal question, which we review de novo to ascertain and give effect to the Legislature’s intent. Where text is clear, text is determinative of that intent. . . . This general rule applies unless enforcing the plain language of the statute as written would produce absurd results. Therefore, our practice when construing a statute is to recognize that ‘the words [the Legislature] chooses should be the surest guide to legislative intent.’ Only when those words are ambiguous do we ‘resort to rules of construction or extrinsic aids.’”
For the term “general contractor,” “[w]e do not look to the ordinary, or commonly understood, meaning of the term because the Legislature has supplied its own definition, which we are bound to follow.” A “premises owner” can be a “person” under the statute. But since the words within the statutory definition are not defined, “we apply a meaning that is consistent with the common understanding of those terms,” which in this case came from Black’s Law Dictionary. Since a premise owner can “undertake[] to procure the performance of work,” it “can be a general contractor.”
The “deemed employer” section in the act goes back to 1917, using the term “subscriber.” That term was kept in 1983, when “the Legislature added the ‘written agreement’ provision.” The Court believes that the act “did not exclude primeses owners.” A premises owner “is free to do the work with its own employees, to directly contract with others to do the work, or to do the work using some combination of the two.” Entergy did what the law encourages, namely to take “out a workers’ compensation policy for the entire work site,” and is therefore a “‘subscriber.’”
The “statute is not written so restrictively as to encompass only a three-party relationship,” between owner, general contractor, and subcontractor. One narrow exception, for transportation services, should not be read “broadly.” The definition specifying types of included contractors, has a “non-exclusive” list. “[W]e have been instructed that ‘[i]ncludes’ and ‘including’ are terms of enlargement and not of limitation or exclusive enumeration. . . .’” Moreover, excluding owners would render “meaningless . . . how a general contractor ‘undertakes to procure the performance of work.’” The Legislature “at least contemplated the existence of a premises owner who may want to act as its own general contractor.” “[W]e do not interpret a statute in a manner that renders parts of it meaningless.” “Since the Legislature provided its own definition for ‘general contractor,’ we elevate the Legislature’s substituted meaning even when it departs from the term’s ordinary meaning.”
“[W]e do not resort to such extrinsic aides [as the legislative history] unless the plain language is ambiguous.” But here, it favors Entergy. The Court will “attach no controlling significance to the Legislature’s failure to enact” legislation; it is “‘perilous to derive the meaning of an adopted provision from another provision deleted in the drafting process.’” Because the act deleted a phrase, “[w]e give weight to the deletion of the phrase ‘with another party’ from the amended definition since we presume that deletions are intentional and that lawmakers enact statutes with complete knowledge of existing law. It is, of course, axiomatic that the deletion of language better indicates the Legislature’s intent to remove its effect, rather than to preserve it. . . . [W]e should always refrain from rewriting text that lawmakers chose, but we should be particularly unwilling to reinsert language that the Legislature has elected to delete.” The Court should “likewise decline consideration of lawmakers’ post-hoc statements as to what a statute means. It has been our consistent view that ‘[e]xplanations produced, after the fact, by individual legislators are not statutory history, and can provide little guidance as to what the legislature collectively intended.’”
Finally, “it makes no sense to read the statute” to allow the owner the exclusive remedy defense for its own employees and not the contractor’s employees “working side-by-side” with them. The statute’s policy is to encourage “provision of wokers’ compensation coverage.”

Nabors Drilling, U.S.A., Inc. v. Escoto, et al., 288 S.W.3d 401

Employee left work after a lengthy and exhausting shift, and while driving home, crossed the centerline and caused a fatal collision. The jury found the employee 57% at fault and his employer 43% at fault. The Supreme Court ruled that “that the employer had no duty to prevent injury due to the fatigue of its off-duty employee or to train employees about the dangers of fatigue.”
“An employer ordinarily will not be liable for torts committed by off-duty employees except when the torts were committed on the employer’s premises or with the employer’s chattels.” However, “under certain circumstances the employment relationship may impose limited duties on employers to control the activities of employees. See Love, 92 S.W.3d at 457; Otis, 668 S.W.2d at 311. Those situations have arisen when an employer affirmatively exercised control over its employee because of that employee’s incapacity . . . and when an employer required its employee to consume alcohol to the point of intoxication while working. . . .”
“Otis owed a duty . . . ‘because of the employer’s negligent exercise of control over the employee. The defendant acted affirmatively in sending the drunken employee home and created an unreasonable and foreseeable risk of harm to others.’” [Here,] Nabors did not have the requisite knowledge of employee impairment, nor did it exercise the requisite control. . . .” There must be “more than [a] general awareness fo employee fatigue;” the employer must have “actual knowledge that its employee was impaired. . . .” Additionally, “the employer must affirmatively exercise control over the incapacitated employee.” Here, “Nabors did not exercise any post-incapacity control. . . .” It merely established “work conditions and set[] the shift work schedule. . . . But Otis requires an affirmative act of control following, and prompted by, the employee’s incapacity.” Therefore, since “Nabors took no affirmative action as a result of any perceived employee fatigue or incapacity . . . Nabors owed no legal duty to the plaintiffs. . . .”
Additionally, unlike Love, “impairment was [not] a condition of Ambriz’s employment, or even . . . an inevitable consequence. . . .” Therefore, the “limited duty recognized in Love does not apply.” The Court also notes that “fatigue is distinguishable from intoxication. . . [because] there is no quantitative physical measure of fatigue. . . .”
“We acknowledge that traffic accidents may occur when drivers are excessively fatigued, but we do not believe that this generally known risk of driving while fatigued justifies holding an employer liable for an employee’s off-duty fatigue-related automobile accident.” Considering whether “Nabors affirmatively created a dangerous situation. . . we cannot say that Nabors created any significant foreseeable risk of harm to Texas motorists.” And, “foreseeablity alone is not sufficient to create a new duty.”
Further, “[h]aving held that there is no employer duty with respect to off-duty accidents involving fatigue, we also decline to create a new duty requiring employers to train employees about fatigue.” An “employer has a duty to ‘warn an employee of the hazards of employment and provide needed safety equipment or assistance.’ . . . However, the employer ‘owes no duty to warn of hazards that are commonly known or already appreciated by the employee.’” “[B]ecause the risk associated with driving while fatigued is common knowledge and appears to have been appreciated by Ambriz, Nabors owed no duty to train employees about those risks.”

Transcripts

Host: This week’s topic is Texas Supreme court recent rulings. Presented

by Jay Jackson, a trial attorney with ABRAHAM, Watkins, NICHOLS, SORRELS, AGOSTO & FRIEND in Houston Texas. Mr. Jackson and I will be discussing recent holdings from the Texas Supreme Court. Thank you for joining us today, Jay.

Jay: I’m very glad to join you.

Host: So, my first question is, how has the Supreme Court altered the

statute of limitations recently.

Jay: Well, there was a case called Ashley vs. Hawkins, the opinion was

handed down June 2009. That was a car accident case where someone was injured by the fault of another driver. The driver that caused the wreck lived in Texas, but then moved out of the state. Now, before this case, the Texas Legislature had passed a statute that said that as long as the opposing party has moved out of the state then the statute of limitations, which normally is two years, will be tolled or suspended, as long as the defendant is out of state. That is §16.063. The Texas Supreme Court came along, and asked in Ashley v. Hawkins and said that, since you can serve a person out of state by delivering the suit papers to the Secretary of State or to the Department of Transportation, that that makes the defendant, “present in the state of Texas,” and so it doesn’t apply. The affect is, that any time a person causes a wreck in Texas and moves out of state, since you can serve the Secretary of State anyway, the provision that the Legislature made in §16.063 has essentially been written out of the law. You’ll never have a chance to take advantage of §16.063, which the Legislature has provided to those who are hurt, when the defendant moves out of state because you could always serve the secretary of state. So that is the way the Texas Supreme court has dramatically changed the statute of limitation law in Texas very recently.

Host: What is the statute of repose? And how has the Supreme Court

interpreted it?

Jay: Well, the statute of repose differs slightly from a statute of

limitations. A statute of limitations says that you have to bring suit within 2 years usually of the event that causes the injury, sometimes it is 4 or 1 year, depending on the kind of case, but normally it’s 2 years. That starts the clock running at the time of the injury. The

statute of repose says that you have to start filing the lawsuit within a certain amount of time after the carcass is made or a house is built. The statute of repose of Texas generally is 15 years. So, for a product, you have to bring suit within 15 years of when the product was first sold by the maker. That may occur if you don’t buy or use the product until longer than 15 years that it was manufactured, in that case you are just out of luck. Well, in the case called Galbraith Engineering Consultants of June 26, 2009, what happen was this, homeowners had bought a house from a builder and it had water damage because of rain. So the homeowner sued the builder. The builder later decided to designate the engineers as a responsible party, by doing that, the builder will be entitled to submit the potential fault of the engineer to the jury for the jury’s consideration, but the plaintiff would not be able to recover from the engineers. So the law has permitted the plaintiff then to sue the designated responsible third party, as long as they do so within 60 days of the designation. In this case the plaintiffs did that, but by the time the case got to the Supreme Court, the Texas Supreme Court said that the statute of repose trumps, so to speak, the responsible third party practice. So it allows the defendant to designate the engineer, it allows the jury to put fault on the engineer because there won’t be anybody there defending against us, there would be an empty chair, is where we stand. And yet the plaintiff can’t recover from them because it was after the statute repose, it was longer that the length of time that the plaintiff could have sued the engineers. So the builders get a chance to blame the empty chair, the plaintiff cannot recover from the empty chair.

Thanks for shedding some light on that. Has the Supreme Court changed any other procedural rule from the last year?

It has. It has done so, very dramatically in a case called Las Colinas. That was a medical malpractice death case. The man went into the hospital for a routine treatment of kidney stones and two days later he was dead. The plaintiff sued the hospital and after a four week trial. The jury returned a defense verdict. The trial judge observed the witnesses and listened to all the evidence, believed that that was unjust and granted a new trial. Now, for over a hundred years Texas trial judges have been allowed to grant a new trial in the interest of justice. The defense however appealed that, took it to the Texas Supreme Court and a the Supreme Court created a brand new rule that says the trial judge has to state all of his reasons for granting a new trial. Never before has a trial judge been required to do so, to state his reasons. He could simply grant it in the interest of justice. And so now the trial has been sent back down to the trial judge for

him to draft a paper or an order, setting forth all the reasons to grant a new trial. This is especially difficult in the Las Colinas case, because the trial judge that granted the new trial originally, is off of the bench, a new judge was elected, and since then while it’s been on appeal, still a third judge has been elected to that bench. So the third judge is going to have to go through the transcript of four weeks of trial to determine the reasons for granting a new trial.

Host: How has the Supreme Court reduced the rights of workers who are

injured on a job site?

Jay: Well recent times employers that are general contractors could buy

workers comp to cover not only their employee but all of the sub­contractors employees. In the workers comp laws in the state of Texas would allow there to be one recovery for the injured worker; workers comp only. Workers comp prohibited the employee from suing another company’s employees or other companies or the general contractor. But that law was specifically made for the general contractor by the legislature and it had very specific procedures that the general contractor had to follow. Well the case that attracted all the attention was Entergy Gulf States. It was handed down in April of 2009, and the Texas Supreme Court in that case, basically, said that even though Entergy was not the general contractor it was only the land owner, it nevertheless could take advantage of the workers comp statute. It could in essence be the general contractor since it had hired the subs itself directly. So the Supreme Court expanded the prohibition that was imposed upon employees from suing the responsible party that caused their injury and limiting only the worker comp to include now the plant owner when it formally was designed specifically for general contractors. The reason that is important is that in the past if an injured worker had workers comp from his own job he would collect comp benefits from his employers workers comp, then if somebody else besides a fellow servant had caused his injury, he could sue that other person or company, if he collected, typically the amount of money was much larger that the very major comp benefits that our state allows. He would take the verdict and the money he collected from there and pay back workers comp and keep the difference himself. Now that has been eliminated entirely.

Host: So my last question is, what happens if a company works an employee

to the point of exhaustion and then he’s driving home and causes a fender line and kills someone?

Jay: Well the Nabors Drilling’s case that was handed down on June 19, of 2009 also favored employers. Prior to that case, there were two holdings that under specific circumstances required the employer to be responsible for the injuries caused by the employees on the way home. In one of the cases called Loved, a lady that was a topless dancer and was required to consume alcohol at work injured somebody on the way home because she was intoxicated. In the other case, in the Otis Engineering case a worker showed up at work intoxicated. Otis sent him home and on the way home he injured somebody. So that was the law prior to Nabors Drilling this summer. In Nabors Drilling, the worker was required to work in excessive 24 hours straight in an exhausting task on the drilling floor and then his shift was over and he was sent home, on the way home, because of fatigue, he crossed the center lane and kills somebody. So the family members of the person that was killed sued not only the employee, but also Nabors Drilling for sending him home when he was tired. The jury listened to all the evidence and said that the worker who crossed the center line 57% at fault and his employer Nabors Drilling was 43% at fault, after they listened to all the evidence. Well, the Texas Supreme Court said no, regardless of whether the evidence shows that the employer is at fault, we’re going to hold, in a matter of law that the employer cannot be at fault. They based that on two things. One was that they said that the employer did not know how tired the worker was and secondly they said that even though it’s foreseeable that a worker would be worked to the point of exhaustion and then injured somebody on the way home, foreseeability alone was not enough reason to impose liability. So, even though it’s foreseeable that there will be risk of harm for Texas motorist, forseeability alone is not sufficient to create a duty on the part of the employer. So that is another way that Texas employers have gotten benefit from the Texas Supreme Court to the detriment of those who have been injured by negligent parties.

Host: That is really interesting. Thanks so much, and I really appreciate your time today Jay.

Jay: I’m glad to join you.

Host: That concludes today’s conversation about Texas Supreme Court recent ruling. For more information, please visit our website at www.abrahamwatkins.com or call us at 713-222-7211 or toll free at 1-800-870-9584. Thank you for joining us today and we hope we’ve been helpful to you.

Attorney Daniel Horowitz III

Daniel D. Horowitz III, a Houston car accident attorney at Abraham, Watkins, Nichols, Sorrels, Agosto & Friend, discusses what to do and who to contact following a car accident or wreck. Your steps following a car accident may be different depending on who the other driver is. Mr. Horowitz gives a brief walkthrough of what will likely happen following a collision and the steps you can take to make sure you are protected after a car accident. Mr. Horowitz is a Texas Super Lawyer, based in Houston.

Transcript

Host: This week’s topic is car wrecks presented by Daniel Horowitz, a trial attorney
with Abraham, Watkins, Nichols, Sorrels, Agosto and Friend in Houston, Texas. Mr. Horowitz, and I will be discussing what to do when you are in a car wreck. Thanks for joining us today Daniel.

Daniel: You are welcome. I look forward to talking with you.

Host: So my first question for today is what would a person do at the scene of the car
wreck?

Daniel: The most important thing to do at the scene of a car crash is to evaluate the
injuries of yourself and anyone in your vehicle. Before you start thinking about anything else, you need to make sure that you and your passengers are OK; and if you are not OK, you need to call an ambulance right away. After the determination has been made as to who needs medical care and who does not, try to find a safe place there at the scene of the crash to get out of the intersection or off of the highway. It never fails, as soon as there is the first wreck and if the vehicles are not moved, another car will come along and cause more damage than originally created from the original crash. Another thing you need to do is call the police. Police reports are critical when determining who is at fault and who is responsible for the crash. Sometimes police agencies will try to tell you that they do not respond to wrecks unless there is a certain amount of damage. You need to insist that they come out and write a report and take the information down, not only for yourself and your witnesses, but also for the other vehicles involved in the crash. I would also recommend, while at the scene, to try and get the information of the person or company who is involved in the crash as well. I would not give a statement to them but I would ask that person for their name, insurance information, telephone numbers, driver’s license, etc. and exchange that information with anybody who is there at the scene of the crash; that includes witnesses and not just other drivers.

Host: What statements should be provided at the scene of the wreck?

Daniel: It is very important, when you are at the scene of a crash, to cooperate with any
law enforcement personnel and also speak openly and freely with the medical personnel who are there attending to your injuries. So in that case, you need to give statements to those individuals. I highly recommend against, to my clients, giving statements to anyone else. I do not think they should give statements to the other driver and specifically don’t give a statement to the other insurance company or a representative from the company of the vehicle that caused the crash. What I mean by that is, when wrecks involve commercial vehicles or a vehicle owned by a business, the standard practice in the industry is that within minutes, that company is notified that there has been a crash. That company then turns around and immediately notifies their insurance company. So within an hour, an insurance company and the company will typically have someone there at the scene doing an investigation. Do not speak to those people. They are not your friends. You do not want to be nice to them. Because at the end of the day, their goal is to pay you as little money as possible for your medical bills, your lost wages, and for all the suffering and impairment that you’ve had to go through as a result of their employee’s negligence. So the only people I would give a statement to are law enforcement and medical personnel in order to evaluate your health condition.

Host: That’s really helpful. When should a person contact the insurance company?

Daniel: Well, there are two insurance companies that you need to be thinking about. The
first insurance company is the insurance company of the person who caused the crash, the other driver, the company, the other vehicle. Those people are not your friends and you need to remember that every time you call and speak to one of the representatives from that insurance company. You have no obligation to speak to the insurance company of the other driver. You don’t even have to put them on notice of any claims until two years after the crash. And the reason I say two years is because in Texas, the statute of limitations on auto wrecks is two years. That means that if you get into a wreck on May 1,2008, you have until May 1, 2010 to file a claim. So between the two years from the date of the crash, you’re under no obligation to speak to the other party’s insurance company. However, if you want to try and get the matter resolved, you will have to contact them. The second insurance company that you need to be thinking about is your own insurance company. In order to make a claim under your own insurance policy, you need to notify them as soon as possible. I would notify them the same day, in writing, and explain to them what happened and what caused the crash. At that point, your own insurance company will need to take a statement from you regarding your thoughts on what happened, who was injured and who caused it. And you may be asking yourself, well I thought you just said “don’t give a statement to an insurance company”. Well that’s where you need to know the difference between your insurance and the other driver’s insurance. If you do not give a statement to your own insurance company, they can deny the claim and say that they don’t have to pay you anything under your own insurance policy. The reason for the difference is when you buy insurance, you sign a contract between you and the insurance company that you purchased it from. That contract spells out all the obligations that not only the insurance company has, but also obligations that you have in order to obtain any benefits from that insurance coverage. So bottom line is, contact your insurance company as soon as possible; whether it’s at the scene of the crash or as soon as you’re physically and medically able to do so following the crash. And as it relates to the party who caused the wrecks insurance, I recommend not contacting them at all and instead contacting a lawyer to help fight for your rights.
Host: When and how should a person hire an attorney after a car wreck?

Daniel: I think the smartest decision to do after a car wreck is hire an attorney right away.
And after what I just discussed regarding insurance companies, there is no doubt in my mind that the person who has. been injured and involved in a car crash is better off hiring an attorney immediately and letting that lawyer handle a claim against the defendant driver’s insurance company. Insurance companies don’t make money by paying claims. They make money by delaying the process, frustrating the person that’s been injured and getting them to agree to take little or nothing on a valid claim that was caused by someone else’s negligence. That’s where we come in. Our job as the lawyer is to protect you in those situations, stand up to the insurance companies and tell them that you’re not going to settle your claim for pennies on the dollar. Now, how do you hire a lawyer? Our firm has a policy that we prefer to meet our clients in person. Our lawyers will go out to someone’s house. Our lawyers will go meet someone at a restaurant or gas station if they feel more comfortable with that. In the past, we’ve even had to go meet families in catastrophic injury cases, we’ve been called and asked to come to the hospitals and even places such as funeral homes. We prefer for the families to come in to our office, sit down with us, spend time with us, get to know who we are, get to know what type of firm we are and get to know that by hiring us, you’re going to get not only the resources and the benefit of the specific lawyer but an entire firm that’s been around for over 50 years.

Host: Thanks so much for all of that information and your time today, Daniel. That
concludes our conversation about car wrecks today. For more information, please visit our website at www.abrahamwatkins.com or call us at 713-222-7211 or toll free at 1-800-870-9584. Thank you for joining us today and we hope we’ve been helpful to you.

Attorney Muhammad Aziz

Muhammad S. Aziz, a Houston 18 wheeler accident attorney at Abraham, Watkins, Nichols, Sorrels, Agosto & Friend, discusses the issue of truck accidents in Texas.  Based in Houston, Mr. Aziz has seen firsthand, the serious injury inflicted in 18 wheeler truck accidents. In this brief interview, he describes the need for more extensive and specialized driver training programs and offers advice  to those considering a truck accident or wrongful death suit following a Texas truck accident.

Transcript
Host: This week’s topic is eighteen wheeler truck accidents, presented by Mo Aziz, a trial attorney with Abraham, Watkins, Nichols, Sorrels, Agosto & Friend in Houston, Texas. Mr. Aziz and I will be discussing trucking safety issues, things trucking companies don’t do but they should. Thanks for joining us today Mo.
Mo: Thanks for having me.

Host: So what are some of the qualifications that truck drivers need to meet?

Mo: Truck drivers need to have a valid commercial driver’s license as well as they need to meet some physical fitness requirements. Truck drivers also need to be aware of the state and federal motor carrier safety regulations. Also, in Texas they to be aware of the provisions of the Texas Commercial Driver’s Handbook.

Host: What are some of the qualifications missing in your opinion that could prevent eighteen wheeler accidents?

Mo: You know based on our experience, what we have seen is that a lot of accidents can be prevented or could have been prevented if the drivers had been given more training in making proper and safe lane changes as well as driving in adverse conditions and when I say adverse conditions I mean driving in rain or fog or sleet and definitely driving in rain is one of the major causes of accidents in Texas.

Host: What are some of the other things that could be done to prevent eighteen wheeler accidents?

Mo: There are specialized training programs, one of them being the Smith system of safe driving. A lot of the major carriers across the country implement this system to train their drivers, like I said again in especially in making lane changes, as well as driving in adverse conditions and if these drivers have had these proper training a lot of these accidents could have been prevented.

Host: So lets say someone does get injured and who would someone injured do an eighteen wheeler accident sue? The trucking company or a truck driver, in other words, who is responsible?

Mo: Well what we see in almost every case is that both the trucking company and the truck driver are responsible. The truck driver is the one who is responsible for the actual accident, however, we’ve seen companies push their drivers to meet deadlines while violating the hours of service regulations sometimes these drivers are fatigued, sometimes they also do not have proper training even after being in accidents in the past, they continue to drive on the road that results in another incident, therefore, both the trucking company and the track driver are liable.

Host: So when is it to late to sue for compensation?

Mo: Under Texas law you have typically two years to file suit, however, trucking cases are slightly different in the nature that the truck companies are not required to preserve the evidence for until after a certain period of time. Furthermore, there is evidence that is in the black box of these trucks which gets lost over time and most importantly the physical evidence at the scene such as the gouge marks or skid marks which can be crucial to the investigation disappears over time since it is outdoors, its on the freeway, there is other vehicles driving on the evidence, there is also weather conditions, therefore although a victim has two years to bring a case, the sooner they can get their investigators out there the better it is for their case.