Naming a defendant in trucking wreck can be difficult

Between the disastrous wreckages and severe injuries, accidents involving big rigs can be very complicated. The fact that it’s often hard to pin down a defendant in these cases makes them even more difficult.

Without a doubt, the trucking industry is a major backbone of the American economy. Without trucks, many goods could not be moved from point A to point B, vital equipment would not be delivered, homes could not be moved, gas would not reach the furthest corners of the nation and grain and other foodstuffs would never make it to market. This means 18-wheelers and heavy trucks of all sizes and shapes are on the roads virtually 24/7/365. It’s not much wonder accidents involving these behemoths can and do happen.

The major complication in trucking wrecks is often determining just who the defendants are in the case. “While you’d think this would be fairly obvious, as in it’s the truck driver, this isn’t always true. So, really, the answer to who is going to be sued in a trucking accident is kind of tricky at times. For instance, if the trucker works for a logistics transport company, they may be an employee of that firm or they may be considered to be an independent contractor. If the driver is an employee, that means the trucking company should be the defendant,” said Brooks Schuelke, an Austin accident lawyer with Perlmutter & Schuelke, L.L.P.

Aside from determining who the party at fault is in a big rig crash, there are other facets of accidents like this that need serious attention. While things may look one way at first glance, often probing deeper into the crash will reveal other things the lawyer needs to know to make a good case. This may include things like finding out if the trucker was speeding, driving aggressively, under the influence of a drug, driving while distracted or driving without enough sleep.

Take the case of the trucker who was watching a movie on his laptop while he was driving his big rig. He struck and killed a mother and her young baby as she was crossing the road. “No question the driver in that instance was negligent. These are the kinds of things we need to find out to take a case to settlement or verdict. It’s information like this that can drive up the amount of the damage award as well. For example, in the case of the trucker watching his laptop movie, there were punitive damages awarded, as well as compensatory damages,” Schuelke said.

For those that have been in a trucking accident and survived to tell their story, contact a skilled and dedicated Austin personal injury lawyer for help.

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

Austin / I35 Trucking Accident Shows The Dangers Of I35

There was a tragic trucking accident yesterday on I35 near downtown.  Around 9:15 a.m., near the 6th-12th street exit on I35, a truck rear-ended another car, and likely caused a four car collision, though investigations are still underway.  Courtney Longbotham, of Waco, was killed and several others were seriously injured. 

The early reports have included speculation that the wreck was caused by the truck not recognizing that traffic was slowing in this area.  If that’s the case, the wreck is a perfect example of the problems in this area of I35.    I have previously written about traffic studies finding that this part of I35 is among the worst roads for traffic in the country.  After all, the most shocking thing about this wreck may be that that it didn’t occur at 5:00 on a week day during typical rush hour traffic; it occurred on a Sunday morning between 9:00 and 9:30. 

This area of road is dangerous, and all driving it need to be careful.  What are some things you can do while driving defensively to protect yourself?

  • Pay attention.  When you’re driving on I35 through downtown, that’s not the time to admire the beauty of Town Lake or the Capitol or to read those billboards.  It is critical to pay attention to be aware of what’s going on around you.
  • Leave a buffer zone.  When traffic inevitably slows or comes to a stop, don’t get up right on the bumper of the car in front of you.  Instead, leave a buffer.  Make sure there is space between you and the vehicle in front of you.  Being hit from behind is bad enough, but then being pushed into another vehicle only makes it worse.
  • Keep an eye on your rear-view mirror.  If traffic is slowing, it might be time to find an opportunity to glance into your rear-view mirror.  If you can see someone about to hit you, you might have an opportunity to take an evasive action. 

Just be aware of how bad this stretch of I35 has become.  Every hour is now rush hour for the stretch of I35 that runs through downtown Austin, and it’s important to always be on the lookout for yourself and others.

Westminster Manor Crane Accident Revives Question: Should Austin Regulate Crane Operators

This afternoon, a construction worker was seriously injured when a crane collapsed at the Westminster Manor construction site. 

These types of on-the-job injuries raise a number of interesting legal questions.  But today, I’m not worried about legal questions; instead, I’m worried about a safety question.

This is not the first crane collapse in Austin or Central Texas.  The last time Austin had a fatal crane accident, city council member Mike Martinez suggested that the City of Austin should consider regulating cranes.  As it stands, neither the state nor the city seriously regulate the use of cranes.  Instead, Texas generally relies on federal OSHA investigators to enforce crane safety.  But there aren’t enough federal investigators to effectively oversee the state’s booming construction industry.

As a result, maybe it’s time to revisit the question about local regulation.  Maybe the city can step in where the state isn’t to try and protect our Austin workers.

Related posts:

 

Del Valle School Bus Incident — More Evidence We Need Seat Belts On School Buses

This week, Rene Nunez-Lemus, a Del Valle school bus driver, has been accused of injuring eleven students by slamming on the brakes of his bus after becoming frustrated with some of the students.  A number of the students sustained injuries severe enough to require EMS transport to the hospital.

I don’t really know what happened on that bus, but I do know that the incident — whether it was intentional or accidental — is a good reminder about why we need seat belts on school buses.  In one article about the incident, Dr. Pat Crocker, chief of staff at the Dell Children’s Medical Center emergency room stated:

There is no question seat belts keep kids from getting injured and even save lives.  They are a good idea no matter what vehicle is on the road for the kids.

Those of you that read this blog regularly know that I’m concerned about bus safety and the Texas Education Agency’s threat to the new law requiring new school buses ot have seat belts.   

While the types of incidents like the one in Del Valle are never good,  the one positive is that the incident helps put light on this problem and leads to more seat belts on buses.  That needs to happen to avoid these kids’ injuries from being for naught.

You can watch a KXAN story about the issue below:

Austin Police Department Fighting Its Own Distracted Driving

 Seventy-four year old Louis Olivier was seriously injured in a car wreck caused by a distracted police officer.  And he’s not alone.  In the three years from July 1, 2007 and June 30, 2010, Austin Police Department officers were involved in 741 crashes, with nearly 20 percent of these wrecks caused by distracted driving. 

As the City of Austin and the Austin Police Department have cracked down on drivers who were unsafely texting in cars, Austin Police Department officers have continued to face driving distractions inside their own vehicles — primarily their on-board mobile computers.

Thankfully, the APD is taking some steps to minimize these dangers.  Yesterday, Chief Art Acevedo announced that a number of changes were being made to help decrease those distractions.  The changes range from increasing font size on the on-board computers, reducing the number of keystrokes necessary for various computer operations, to adding cup-holders to the vehicles. 

Hopefully these changes will make Austin roads safer for all of us.

Both KXAN and KVUE had good stories on this topic, and I’m embedding those below.

Something the Insurance Companies and I Agree About — The Dangers of Texting While Driving

 It’s no secret that personal injury lawyers and insurance companies disagree on a lot.  But when we take the time to sit down with one another, we can find a number of areas of common ground.  And two recent stories demonstrate that we all agree about the unnecessary dangers of texting while driving.

First, I wanted to thank  State Farm for a survey they conducted of teenage drivers.  The survey, released yesterday, asked teen drivers about the danger of texting while driving.  While most of the teens acknowledged the dangers of texting while driving, the teens generally thought that driving while intoxicated was a bigger risk than texting while driving.  Of course, that’s not true.  Readers of this blog and website know that a number of studies have shown that texting while driving is actually more dangerous than driving while intoxicated.   Hopefully, this survey is one of many steps to help drivers understand the true risks of texting and driving.

But State Farm went one step further.  Last month, they released an app for the Droid phone that allows people to create automated text message responses telling anyone that texts them that they are unable to respond.  For example, before driving, a driver could program a response saying, “Sorry I can’t respond to your text, but I’m driving.  I’ll reply when it’s safe.”   Perhaps they will expand the app to the iPhone and other platforms in the future.

On a more local note, Allstate insurance helped sponsor a demonstration event at the Delco Center to help show teens and parents just how dangerous texting and driving can be.  The event set up an obstacle course and asked the teens and their parents to drive through it while texting and tweeting.  One of the things that they learned is that a driver who is texting spends 4-5 seconds with his or her eyes off the road.  Driving at 55 mph, the driver could drive the length of a football field without looking at traffic.  The exercise was eye-opening for all involved, as the KXAN news story below shows.

I just applaud each of these insurance companies for making the effort to try and make the roads safer for all of us.

It’s not just construction workers that may be hurt on the job

Accidents can and do happen every day, and not just on construction sites.

Even with the nation’s economy still in turmoil, there are still at least 100 million people that still have a job to go to. The jobs vary in what they demand of those who ply their trade to make a living. Just because someone works in a lab or a vet clinic doesn’t mean they aren’t exposed to workplace hazards that could harm them.

“Texas is one of the few states that don’t require employers to carry worker’s compensation insurance to protect those injured in the workplace,” said Brooks Schuelke, an Austin accident attorney with Perlmutter & Schuelke, L.L.P. “Instead of being protected by worker’s compensation, many workers are forced to pursue claims against their employers or others that contributed to the on-the-job injuries.”

It’s interesting to note that a number of people think that only workers in physical jobs – such as construction – are likely to get hurt on the job. While it’s true they may have a higher chance to be injured given the nature of the work they do, one of life’s realities is that accidents happen, even in office settings.

“This leads me to the point that many workers just don’t have a good understanding of their rights and responsibilities if they’ve been hurt on the job. They must report the accident and they must be compensated for their injuries. While that is a somewhat simplified summation of the process, if the worker doesn’t report the accident and follow the correct procedure in filing a claim, they may lose out in the end and not receive the benefits they deserve,” Schuelke said.

It’s very human for a person to think that accidents just won’t happen to them, and thus it comes as a great shock to find out the hard way that accidents may strike anytime. “Your level of awareness may be notched up somewhat if someone you work with gets hurt, but generally speaking, people don’t think in terms of something happening to them,” Schuelke said.

“Did you know that in 2008 alone there were more than 10,000 reportable non-fatal injuries every day of the year across the nation? Of that total, 3,696,100 cases were documented and at least 1,078,100 kept the worker off the job for at a day,” he said.

Those statistics, the most recent issued by the Department of Labor, also indicate that the highest majority of accidents tended to happen in the trade, transportation and utility workers ranks, logging in 328,200 cases. Most of the workers hurt were 45 to 54 years old, with the next highest being the 35 to 44 years old bracket. Of the 2008 yearly total, only 120,240 were construction workers.

“What do you do if you have been injured on the job? Do the right thing and report it, follow the established procedures and then call me. It never hurts to have an Austin accident attorney in your corner if you get the runaround on your claim. It happens far more often than people think,” Schuelke said.

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

If I’m Entitled To A Rent Car Following A Car Wreck, Whose Insurance Will Pay For It?

Today’s video answers the question, “If I’m entitled to a rental car following a car wreck, whose insurance will pay for it?”

If You Are Entitled To A Rental Vehicle Follow A Car Wreck, Whose Insurance Will Pay For It? from brooks schuelke on Vimeo.

As always, these are generalizations based on Texas law.  If you need specific information about your claim, please call a lawyer.

Posted on: September 14, 2010 | Tagged

The higher the potential damages, the more vigorous the defense

With catastrophic injuries, damage settlements or verdicts tend to be higher. Serious injuries merit more argument from the defense to save money.

“A catastrophic injury is one that is gravely serious; one that alters a person’s life irrevocably. Typically, those types of injuries are spinal cord injuries, crush injuries, brain damage, amputations and third degree burns, to name a few. These injuries mean the person who sustained them suffers a great deal, and thus overall compensation is typically higher than with other personal injury cases,” said Brooks Schuelke, an Austin personal injury lawyer with Perlmutter & Schuelke, PLLC.

Because these are high stake cases with large payouts, the defense tends to contest the case with a great deal of fervor; more so than the usual injury case. This is due to the fact that the defense wants to save money on their company bottom line by diminishing the serious nature of the injuries or implying the plaintiff was at fault. Sometimes, this type of argument dealing with “who is liable for what” succeeds, which means the victim doesn’t get the compensation they need to continue on with his or her life.

“If this kind of situation has happened to you, and you are certain your injuries are as the result of someone else’s negligence, speak to an Austin personal injury lawyer. You need to know your rights and what to expect if the case goes to verdict,” Schuelke said. Choosing an Austin personal injury lawyer with a substantive track record for dealing with personal injury cases like this is a smart move. The more the lawyer knows, the better it is for the plaintiff’s outcome.

It is vitally important in cases dealing with catastrophic injuries that the settlement or court verdict delivers enough money for the plaintiff to be able to continue on with his or her life, pay medical bills, attend therapy and pay for medications on a long-term basis. The person’s life will never be the same, and the person responsible for the injuries should pay for the damage. Responsibility comes in many forms. Stepping up to the plate and taking responsibility for negligently causing an accident that resulted in catastrophic injuries is often the first step towards healing.

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

If I’m In A Wreck, Will The Other Driver’s Insurance Company Provide Me With A Rental Car?

Today’s video answers the question, “If I’m In A Wreck, Will The Other Driver’s Insurance Company Provide Me With A Rental Car?”

Am I entitled to a rental car after a collision?

Not surprisingly, the answer is, “it depends.”  After a wreck, there can be two decisions about how to proceed on your vehicle. First, if the value of the vehicle is such that the cost of repairs exceeds what the car is worth, then it’s what we call, totaled.

If the value doesn’t exceed the cost of repair, then, of course, the insurance company will pay to have the car repaired.

How that plays out depends on whether or not you’re entitled to a rental. If the repairs will be done to your car, then the insurance company is obligated to provide a rental car for you, so that you can have transportation while the car is being repaired.

On the other hand, if the car is totaled, and the insurance company has satisfied its obligations by just paying you the value of the car, then the current state of the law is that they are not obligated to provide you a rental car. Having said that, most insurance companies will provide you with a rental car for a few days to allow you to make the purchase. But if they’re balking at that or you’re negotiating with them, realize you don’t have a lot of leverage in that situation, so be careful.

As always, the information in the videos is based on Texas law.  If you want more specific advice for your situation, call a lawyer in your state.

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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