A Criminal Conviction For A Trucking Accident

I often tell our clients that one of the purposes of the civil justice system is to help hold wrongdoers accountable  (thus the name of our book).  And many times, the civil justice system is the only way to hold wrongdoers accountable.  But sometimes the criminal justice system does its part, as it did in an article earlier this week that caught my eye.

It’s not that unusual to find drivers of vehicles in wrecks get tickets, fines, etc.  But on Tuesday, the owner of a trucking firm received jail time for his gross negligence in the maintenance of a defective and almost brakeless tractor-trailer that caused a fatal trucking collision. 

The judge that handed down the sentence said that he hopes the sentence will send a “strong message” to the trucking community to keep the trucks in good repair and not try and cut corners on safety issues.

I haven’t heard of any similar types of prosecutions in the Central Texas area, but that type of enforcement might make roadways safer for all of us.

What Is A Wrongful Death Claim Worth?

Earlier this week, I wrote a post asking “What Is The Typical Personal Injury Settlement When Someone Gets Hurt?”  In the post, my basic conclusion is that there is no “typical settlement.”  Each personal injury case has its own unique facts and must be evaluated on its own merits.  If a lawyer tells you he knows the value of your case without talking to you about specifics or without investigating a number of factors of the case, then the lawyer is doing you a disservice.

At about the same time I was writing that post, Ron Miller, a Maryland personal injury lawyer, was writing a post titled “Wrongful Death Compensation: How Much?”   In the post, Ron looks at an academic article that tries to create a more uniform system for awarding wrongful death damages.  And Ron’s response was very similar to mine.  It’s hard to have a uniform system because “facts vary wildly from case to case.”  Each case is different, and awards (or values clients put on elements of awards) differ from person to person.

For example, two personal injury victims may say they like to scuba dive and they can’t do it any longer.  However, one client has been scuba diving a couple of times while the other is willing to spend $5,000 twice a year on scuba diving trips.  The value of being unable to dive probably means a lot more to the second than the first.

All elements of damages vary this way, and it’s just impossible to put a uniform number or value on a claim or to estimate what a claim’s worth without knowing most of the facts of the case.

Are The Risks Of A High Speed Police Chase Acceptable?

Earlier this week, Eliot Alfred Carvajal, was allegedly driving drunk and led Austin Police Department officers on a police chase (with speeds exceeding 100 miles per hour) that started in North Austin on I35 and ended in a fatal collision in South Austin near Brodie Lane.  As the car neared Brodie, Carvajal lost control of the vehicle and wrecked.   One  unindentified passenger in the car was killed, and two others were seriously injured. 

Earlier this month, a Fayette County police chase also ended in a fatality when the driver of the car apparently shot himself while driving. 

While neither of these resulted in collateral damage — injury to those uninvolved in the chase — they do raise the question about whether these type of risks are acceptable.  Do we want innocent people — kids, soccer moms, teachers, etc — put at risk by law enforcement officials engaging in high speed chases?  For example, last September, an innocent Austinite was killed in a police chase after the SUV the police were chasing hit him head on.   Later that month, an innocent pedestrian was seriously injured following another chase.

Sadly, Austin isn’t unique.  Ironically, USA Today ran a feature story just a few days ago detailing the risk of high-speed chase policies.  Their study found that one-third of those killed in high speed police chases are innocent bystanders, and those numbers may be underreported because there is no mandatory reporting system for deaths in pursuit cases.  As a result of these injuries, police departments and governmental agencies across the country are looking at modifying policies relating to police chases. 

But where does that leave us?  Do we continue to have a number of Central Texas high-speed chases?  Do we ask law enforcement to consider using safer alternatives?  Do we draw the line and say “no high speed chases”? Or do we say, “we’re Texas, and we’re catching the criminal regardless of the cost?” 

Only time will tell.

Single Vehicle Wreck Kills One

An I-80 car wreck near San Francisco Bay continues to baffle authorities as the lone survivor doesn’t recall the details of the wreck.

“This case turned out to be a bit of a mystery in more ways than one. It seems the single vehicle wreck killed the driver and seriously injured a passenger. When EMS crews and the police responded, they found a black Acura Integra wrapped around a pole on the side of the highway,” explained Brooks Schuelke, an Austin personal injury lawyer.

Eyewitness reports seem to indicate that the driver of the car lost control of his vehicle as he was swerving to avoid another car that was speeding and weaving in and out of traffic. The “other” driver didn’t hang around either. The Acura driver was pronounced dead at the scene and the seriously injured passenger was air lifted to the nearest medical center for treatment.

“Even though the facts of this case, as far as we know them, seem to indicate that the driver of the Acura was merely avoiding another speeding car, there are questions about the driver’s conduct. For example, questions remain about which lane the Acura was in and what the driver was doing at the time the other car supposedly caused him to swerve violently and to go into a slide,” commented Schuelke.

Did the driver of the Acura see this other car that was being driven recklessly? Was he not able to slow his own speed down and switch lanes to get out of the way of the other car? Or was he also traveling at unsafe speeds, which may account for the swerve ending in a fatal crash when he lost control of his own car?

Until the driver of the other mysterious vehicle is tracked down, the police don’t have much to go on until the passenger is able to tell them what was going on prior to the accident. The passenger may want to take the time to speak to a seasoned Austin personal injury lawyer to discuss the details of the accident. It is possible that he may have a good case to recover compensation for his severe injuries.

Contact Perlmutter & Schuelke PLLC at http://www.civtrial.com or (512) 476-4944.

What Is The Typical Personal Injury Settlement When Someone Gets Hurt?

This is another post based on a search that someone used to reach our website.  In this series of posts, I normally try to answer  the question that the person asked.  But I’m adamant that an attorney that tries to give you an early answer to this question is doing you a disservice.  There are simply too many variables that affect the value of a case and aren’t known until the case develops.

First, it’s important to know that we settle cases based on what we think a jury would award in the case.  Once the case develops, we have an idea of a likely range of the award for your injuries.  Then that range is adjusted up or down for various facts.  If the settlement offer is in that range, then it likely makes sense to accept the settlement.  If we think the offer is below the range, then it typically makes sense to go forward with litigation. 

What factors affect that range?

The first key variable is whether the other side was clearly at fault.  If it’s clear that the defendant caused the injuries (perhaps he ran a red light while he was texting and he was drunk and there were ten witnesses to verify that) then the settlement will be much higher than if there is a question about fault (perhaps a swearing match between the parties about who ran a red light).   

The second key variable is how bad you were hurt.  In Texas, personal injury victims may recover damages for:

  • medical expenses (past and future)
  • lost wages or loss of earning capacity (past and future)
  • pain and mental anguish (past and future)
  • physical impairment (past and future)
  • disfigurement (past and future)

Obviously, the more damages you have for each of these categories, the higher the potential settlement or verdict will be.  However, attorneys can’t accurately give you a range on these issues without knowing specific facts about you and your case.  There is no general rule of thumb to calculate the damages.

There are also a number of other variables that may affect the value of the claim.  Does the defendant have a history of bad conduct that you might be able to use?  Did you have pre-existing injuries similar to those you are now claiming in this case?  Are you represented by a lawyer or does the insurance company think it can take advantage of you? What type of medical care have you received?  Are your doctors or other medical providers likely to cooperate with you?

These factors and more all go in to knowing whether a settlement offer is reasonable.  However, most of these factors aren’t known at the beginning of the case.  These facts are learned and evolve as the case develops.

Having said all that, knowing whether a settlement offer is reasonable is one of the most important reasons to hire a lawyer who routinely represents injured persons in personal injury litigation.  Most people, including attorneys who work in different practice areas, don’t have any idea what a jury might do with a claim.  Thus, they can’t truly evaluate whether a settlement offer is reasonable.

Another Austin Wrong Way Driving Wreck

For the second time in less than a month, Austin has experienced a traffic fatality from a driver driving the wrong way on a highway.  Early Saturday morning, a woman in her twenties was killed as she was driving the wrong way in the northbound lanes of the I35 lower deck.  The wrong-way driver hit two other vehicles and was killed after her car caught fire.  Amazingly, the  occupants of the other two vehicles appear to not have been seriously injured at this time.

The wreck fits the pattern of wrong-way collisions.  These wrong-way wrecks typically involve young drivers, occur late at night/early in the morning, and alcohol is often involved (though I am only speculating about alcohol use in this latest wreck).

The Saturday morning wreck follows an earlier wreck this month when a driver was driving the wrong way on the 45 toll road.

I hope to hear more about the investigation and how the driver managed to enter I35.  Wrong-way wrecks are a nationwide problem, but the best way to manage them seems to be proper design and engineering of on and off ramps.

For more information on wrong way wrecks, you can read these posts:

Even with Icy Roads, Drivers Should Adjust Their Speed Accordingly

Slick roads cause accidents. Drivers need to drive according to the weather conditions.

Just recently in Fort Worth, Texas, there were two deadly accidents attributed to the icy road conditions. It had just snowed, and the roads were particularly dangerous. The police were busy that night responding to the two wrecks, one on the East Loop 820 and the other on I-30.

The accident on the East Loop involved a 22-year-old man, Haun Ng (names have been changed to protect the identity of the victims), who was inspecting his car for damages after being involved in a fender bender with a tow truck. Another passing vehicle suddenly slammed into Ng’s car, threw Ng over a barrier and on to the highway several hundred feet below. Ng was pronounced at the scene when the EMS crews responded. He died due to the blunt force trauma and the fall.

The accident on the I-30 involved an 18-wheeler that hit a pickup truck, causing a multiple vehicle crash. There were five cars, two semis, and two pickup trucks damaged in the collision. One man was killed.

The police reports for each of these accidents indicate that the road conditions were bad that day, but there were still some unanswered questions relating to both deadly crashes. While it was clear the roads were slick, questions remain about the drivers’ speeds and their other driving ability. It’s a driver’s responsibility to drive according to the road conditions, and if they were speeding, they were reckless and negligent.

Other questions that will need to be answered relate to whether the drivers of the vehicles that caused the accidents were doing something else at the time of the crashes rather than paying attention to their driving. For instance, were they on the phone, talking to another passenger, using a laptop or reaching to pick up something in the backseat. A moment’s inattention is enough to cause a fatal accident.

When it comes to determining liability in car crashes, it is important to know what the drivers were doing just prior to impact. A skilled Austin personal injury attorney is able to assess any auto crash case based on the evidence at the scene, the police reports and the facts of the case as told by the victim of the crash. In both the crashes in this article, the families of the deceased may wish to speak to a dedicated Austin personal injury attorney and discuss filing a wrongful death lawsuit.

Brooks Schuelke is an Austin personal injury attorney with Perlmutter & Schuelke PLLC. Contact an Austin injury lawyer at Civtrial.com or (512) 476-4944.

How Safe Is Capital Metro’s Rail System?

Today, the legislative Sunset Advisory Commission released its staff report on the Capital Metro Transportation Authority.  Unfortunately, the report raises a number of questions about the safety of the new Capital Metro rail system. 

The first real safety issue involved the bridges along the rail system.  The report notes:

Most of the 200 bridges on Capital Metro’s 162 miles of tracks are timber, and many more than 100 years old.  According to Capital Metro, of the 42 bridges on the 32-mile corridor commuter and freight operations share, experts have determined that, in the near future, 10 bridges need major repairs and three must be replaced altogether.

While there doesn’t appear to be an immediate danger from the condition of the bridges, the report also finds that there don’t appear to be any budget or plans for these repairs.

The second safety finding is that there is no state safety oversight and the federal oversight is inadequate.  The report noted that the Federal Railroad Administration only has the capacity to inspect about 1% off the nation’s rail lines.  Additionally, the FRA hasn’t finished creating railroad bridge regulations.

The report has the following recommendations to improve the safety of the rail line:

  •  The state should require Capital Metro to maintain a comprehensive rail safety plan and to regularly report to the Texas Department of Transportation on the ongoing safety of the rail system.
  • Require Capital Metro to hire a Rail Director to oversee and be accountable for safety, among other things.
  • Capital Metro should prioritize and budget for work on bridges.

Let me also point out the opposite side of the coin.  When Houston’s rail system opened, there was a rush of serious accidents between the trains and motorists or pedestrian.  We haven’t seen that yet, and some of that success has to be attributed to the work that Capital Metro has already done.  But safety has to be the first priority, and Capital Metro needs to demonstrate that continuing commitment.

Posted on: April 23, 2010 |

Work Zone Safety — Give Your Undivided Attention In Roadway Construction Zones

workzone_poster_final_030310  This week is National Work Zone Awareness Week.  I’ve written about it before, but  perhaps the most dangerous part of any  roadway — for both motorists and for construction workers — is a construction zone.  In 2008, 720 workers and motorists were killed in highway work zones nationally and more than 40,000 were injured.  Eighty-five percent of those killed in work zones are drivers or passengers.

The numbers are particularly scary for Texans.  In 2008, 175 people were killed in highway construction and maintenance zones in Texas.  More than four out of every five work zone fatalities are motorists traveling thruogh the work zone.  Thirty-four percent of the 2008 work zone fatalities were related to drug or alcohol abuse, and 71 percent of the work zone fatalities were male.

 

The most important thing motorists can do is pay attention.  Fred Underwood, Texas Transportation Commissioner, said, “Speed and inattention are the leading causes of work zone crashes.  Each of us has the power to protect and save lives.  We just need to put our cell phones down, stop messing with the radio and focus on driving…We can reduce the number of fatalities that occur in work zones.”

More specifically, the National Work Zone Safety Clearinghouse has these driving tips:

  • Motorists should know the work zone signs.
  • Motorists should obey flaggers and posted speed limits.
  • Motorists should pay attention to other drivers.
  • Motorists should keep an eye out for workers.
  • Motorists should stay focused and avoid distractions.
  • Motorists should expeect the unexpected.
  • Motorists should keep their cool and be patient.

If you’re in a work zone, please be aware of workers, changes in roadway elevations, and other drivers.  These are needless tragedies that can all be prevented.

In An Accident? Make Sure The Hospital (Or Other Health Provider) Knows About Your Health Insurance

HealthInsurance

If you’re injured in an accident, some hospitals and other medical providers would rather forego making a claim on your health insurance and wait until the end of the case to receive payment out of any settlement or judgement. 

“Why?” you might ask.  Medical providers have contracts with health insurance companies, and under those contracts, the health insurance companies have negotiated lower rates for procedures than what the general, uninsured public would pay.

For example, if you go into a hospital and the charges are $5,000.00, the hospital and the insurance company might have an agreement that the insurance company only has to pay $2,500.00 for those services.  To avoid those reductions, many hospitals and other medical providers have been adopting policies to not bill health insurance if the treatment results from a car wreck or  other event where the patient may have a legal claim.

This policy creates a problem for personal injury victims.  At the end of the day, once the case is resolved, the victim has to use the proceeds from the settlement or judgment to pay the hospital the entire $5,000.00 instead of only being obligated to pay the insurance company the $2,500.00 (and in many instances, we can even get that reduced).  Thus, a medical provider’s failure to submit claims to a health insurance company costs our clients money. In many cases, those amounts are so substantial that this issue makes the difference between a settlment going forward or not.

It’s also against the law.   Chapter 146 of the Texas Civil Practices and Remedies Code requires hospitals to submit bills for payment under available health insurance policies in a timely manner.  A hospital that doesn’t submit a bill to an available health insurance policy in a timely manner “may not recover from the patient any amount the patient would have been entitled to receive as payment or reimbursement under a health benefit plan or that the patient would not otherwise have been obligated to pay had the provider complied with” the law.

So what’s a patient to do?  First, make sure that the hospital or medical provider knows about your health insurance coverage.  A number of providers seem to take a “head in the sand” approach and make a specific practice of not asking about insurance.  That way they can claim that they didn’t know the health insurance was available.  Don’t let them get away with this.  Make sure that you have some proof that they hospital or medical provider has notice of your health insurance.  For example, you may want to fax them a copy of your insurance card.

If the hospital or medical provider has the information and still won’t submit a claim, you can always file the claim yourself.  Simply take the bill, get the insurance company’s contact information off your card, and fax the bill to the insurance company and ask the insurance company to pay it.   It’s a hassle, but it gets the job done.

Finally, let me say that there is a potential downside to this.    In this day, when the “paid vs. incurred” rule is in play, some lawyers advise their clients not to submit bills to health insurance because it might decrease the damages ultimately awarded.  However, I don’t hold those beliefs.  In most courts, judges are dealing with this in such a way that the damages shouldn’t be affected.  More importantly, I generally tell clients not to modify their lives based on how it’s going to affect a case.  You never know what’s going to happen at a trial.  If you have health insurance that can pay bills, you’re generally bettter off using so you don’t have those unpaid bills hanging over your head should something go wrong with the case.

Perlmutter & Schuelke, PLLC maintains offices in Austin, Texas. However, our attorneys and lawyers represent clients throughout the state of Texas, including Dallas, Houston, San Antonio, Forth Worth, El Paso, New Braunfels, San Marcos, Kyle, Buda, Round Rock, Georgetown, Lockhart, Bastrop, Elgin, Manor, Brenham, Cedar Park, Burnet, Marble Falls, Temple and Killeen. By Brooks Schuelke


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