Quick Auto Accident Settlements Not Always Beneficial Says Austin Personal Injury Lawyer

Claimants can get a settlement quickly if they go along with the insurance company and settle fast and low. Unfortunately, this may also result in the victim not getting fair compensation.

“If there’s one thing that I hear a lot of in my practice as an injury lawyer, it is the question, ‘How long will it be before I get a settlement from my car accident?’ The response is usually that getting a settlement takes whatever time is necessary if you are dealing with an insurance company with the assistance of a lawyer. It may take less time if you choose to try and deal with the insurance people on your own; something I don’t highly recommend,” said Brooks Schuelke, an Austin personal injury lawyer with Perlmutter & Schuelke, L.L.P.

Dealing with an insurance company can be one of the worst experiences anyone could ever have, largely because, although they want to settle fast, insurance companies do not want to settle quickly for the same reasons that the victim does. When an insurance company is in a hurry to get a claim settled, they try to get the injured victim to resolve the claim fast and for a low amount. In other words, settle for far less than the victim may actually be entitled to should their case go to court. Their main goal is to give victims as little as possible, send them packing, close the file and call it done.

Often, some of the tactics used by insurance adjusters would shock anyone with a sense of fairness. For instance, it is not uncommon for an insurance adjuster to put words into the victim’s mouth and then add a twist to them. They may start out with a nugget of truth and then spin their sentence into something completely different.

It is not uncommon for them to change horses and opinions mid-stream, either. In one conversation, the victim may be told the other driver did not have the right to do what they did. In another conversation, the opposite may be said. Confusion, diversion, fabrication, offensive remarks and subtle, or not so subtle, accusations are the stock in trade for many aggressive insurance adjusters aiming to keep as much money as they can and close out a claim for as little as possible.

Insurance companies run a business; the business operates on a bottom line. The bottom line is to keep as much money as they can, not hand it out to claimants. If all the claims were paid out at values that were actually fair and equitable, the insurance company would not make as much; hence the drive to save money on the backs of injured drivers.

Be aware that most insurance companies will take notes and record what victims have to say for use against them later. What may appear to be just facts to the plaintiff may suddenly become a conspiracy theory against the insurance company to wring more money out of them unfairly. Dealing with insurance adjusters is like trying to nail Jell-O to the wall.

“While it may seem like you are getting a good settlement offer, you may not be aware, without having spoken to a skilled Austin personal injury lawyer, that you should be compensated fairly for the damages you have sustained. Perhaps the injuries seem minor on the surface and you sign a waiver on your insurance file. Big mistake. Crash injuries have a way of developing into something else over time and if you waive your rights, you can’t claim for anything later. This is why you need to talk to an attorney if you want justice and adequate compensation,” Schuelke said.

Contact Perlmutter & Schuelke PLLC at Civtrial.com or (512) 476-4944.

Another Wrong Way Driver Wreck In Dallas

It’s some thing you think should never happen, but it’s common — accidents caused by drivers driving the wrong way on interstates or major roadways.

Unfortunately, another wrong-way driver wreck happened in Dallas last Thursday night/Friday morning. 

Joseph Macias was driving southbound in the northbound lanes of I45 when he slammed into another vehicle.  The wreck killed  Luis Alvarado and  Jose Aguilez-Coreas, the two passengers of the other vehicle,

From reading and investigating these types of wrecks, the two most common causes are drunk drivers and elderly drivers.  In this instance, the police are investigating whether alcohol played a part. 

Unfortunately, the only way to avoid these types of accidents is to be very diligent.  As a driver, you have to be aware of those around you and be mindful that if someone is driving the wrong-way, they’re likely impaired.  That means you’re going to have to do the work to avoid the wreck.

Big Rig Brake Failures the Cause of Many Fatal Wrecks Says Austin Personal Injury Lawyer

Mechanical failure is one of the leading causes of 18-wheeler accidents. Maintenance is crucial to safe operation.

“While this should be a no-brainer, it seems that a great number of trucking companies don’t always keep their trucks up to snuff. Perhaps they are tired, don’t have time or forget, but maintenance can be the biggest lifesaver when they take their rigs on the highways and byways of the nation. All it takes is one missed brake or load check to ultimately become the reason for a fatal wreck,” said Brooks Schuelke, an Austin personal injury lawyer with Perlmutter & Schuelke, L.L.P.

The trucking industry, by and large, does a good job of keeping their behemoths running smoothly and on the road. Those rigs keep the nation in business every day of the week by transporting goods. More often than not, truckers check their loads; check how they are strapped down, check their tires, their fuel levels and brakes. Unfortunately, there are those who would prefer to go for the cash at the end of the run and not take the extra time to do due diligence to ensure their truck is safe.

“Any trucking company and/or trucker that does not take the time to properly perform safety checks on a regular basis is taking the potentially fatal risk of killing someone in a wreck. It’s a given that when an 18-wheeler hits another vehicle, the results are usually deadly. It is up to the driver and the company to take the responsibility to be safe, drive safe and travel safe. The lives of others, including their own, are at stake every time a rig hits the road,” Schuelke said.

Mechanical flaws that affect the function of an 18-wheeler, such as poor or worn brakes or loose tires that come off, have the potential to blow up when least expected. No one wants to be in front of a big rig whose driver suddenly discovers that the vehicle’s brakes are not working properly; a disaster in the making that could have been avoided had the driver done a proper safety check before starting the run.

Consider the case of the four vehicles stopped at a construction zone on the highway, waiting for a piece of heavy equipment to clear the road. Out of the blue, the tractor-trailer coming up behind them suddenly realizes the cars are stopped. In an attempt to avoid the inevitable, the trucker hit the brakes and steered toward the ditch.

The brakes failed. The truck did a sideswipe, snake-like motion and completely creamed the last car in line. There were no survivors in the vehicle. The trucker had not checked his brakes and performed proper maintenance on them for months. The estate of the family killed in the wreck would ultimately file a wrongful death lawsuit based on the trucker’s negligence in not maintaining his vehicle.

“Regular inspection and maintenance are the responsibility of every trucking company and trucker. If they fail to take care of their fleet, the results can kill. If you have been in a situation like this, please, call my office for information and to find out what your legal rights are in cases like this,” said Austin personal injury lawyer Schuelke.

Contact Perlmutter & Schuelke PLLC at Civtrial.com or (512) 476-4944.

Paradise Lost: Tort Reform Goes International

I love white sand and blue water. 

For example, I’m sitting in my office, and I have 11 pictures on my desk & bookshelf.  Five of those eleven pictures are of my wife and I or my kids on various white sand/blue water beaches.  A sixth is a post card that says “Peace. Love. Sandy Feet.”  

And I particularly love the Cayman Islands.  I made my first trip to Cayman as a kid, and seventeen years ago my wife and I were married on a private stretch of Seven Mile Beach.  Before kids (and while we had two incomes) we made a number of trips back to Cayman.  Now, a week doesn’t go by that I don’t long for my vision of paradise —  Seven Mile Beach, Smith Cove, Rum Point, Stingray City or some other Cayman destination.

But now, I learn that even heaven can be ruined. 

Today’s Cayman News Service has a story that even the near-perfect Cayman Islands are considering tort-reform legislation and caps on non-economic damages in medical malpractice cases.  I don’t know anything about Cayman tort or contract law (maybe I should), but I hope they’re not too quick to jump on the tort reform bandwagon.

The reasons for the sought out reform are familiar to those of us in Texas  (and those at the Lone Star Bar & Grill on West Bay Road) — medical malpractice premiums.

While tort reform has lowered medical malpractice premiums in Texas (thought not nearly as much as Texans were led to believe), at what cost?  A week doesn’t go by that our firm doesn’t have to explain to a potential client that they’re out of luck, even though wronged by a hospital or doctor, due to medical malpractice law and non-economic damage caps.

I just hope the Cayman government slows the train down to thoughtfully consider the consequences of tort reform and potential alternatives that might help alleviate concerns without taking away the rights of Caymanian consumers.

(For those wondering, the remaining five pictures are:  a picture of my family at a UT football game, one picture of my daughter with Mack Brown, two individual pictures of my kids, and one picture of my dog.  I also have an electronic picture frame with pictures of my kids, but most of those pictures are also beach pictures  — with some Disney World pictures thrown in.)

Another Austin Auto-Pedestrian Fatality

This week brought another sad auto-pedestrian fatality.  On Sunday night, a 56 year old Austin woman was killed as she was struck by a vehicle while she was crossing Riverside Drive near Willow Creek  (just west of Pleasant Valley).

These types of potential cases are always interesting.  Looking at it, the first thing that has to be determined is what happened.  The two news stories are vague about where and how the wreck occurred.  But if the victim’s family was looking to file some type of claim, a lot has to be determined.  Was the victim crossing in the cross-walk or somewhere else in the road?  What type of clothing was the victim wearing?  How well-lit were the streets in the area?  What else may have contributed to the driver not being sure he or she hit someone  (the stories both say the driver continued on a bit before stopping to call 911)?

In many of these auto-pedestrian cases, one imporant issue is whether the pedestrian was crossing a street in a cross-walk.  If the pedestrian was in a cross-walk, the driver has the obligation to yield.  But even if the pedestrian wasn’t in a cross-walk, it doesn’t mean that the pedestrian or the pedestrian’s family don’t have a case.  The question is still whether the driver’s conduct contributed to the accident.  Was the driver speeding?  Did the driver fail to maintain a proper lookout?  Etc.  There are a lot of questions in these cases that need to be answered so that a lawyer could predict how a jury might apportion fault.

The second real issue is what sources of recovery might exist.  Sadly, most drivers today carry minimum limits policies — that means they only have enough insurance to satisfy the minimum requirements of the law.  Depending on when the policies were purchased, that’s either $25,000 or $30,000.  Obviously, in a fatality/wrongful death situation, that’s not enough to fully compensate the victim’s family. 

One other potential source of recovery is an underinsured insurance policy.  If the victim of an auto-pedestrian fatality has bought uninsured/undersinsured motorist coverage on their own insurance policy, then that policy would likely provide additional compensation.

I guess the real lesson in this is that these claims are complicated.  It’s important to start any investigation as soon as possible while the evidence is still fresh.  And that investigation is important in helping to determine potential liability in any of these cases.

Have I Seen A Miracle?

Those that know me, know I’m a fairly religious/faithful guy.  But I’m not sure I had seen a miracle before what I saw last week.

Last week was crazy for me, with a trip to Dallas and two trips to Houston (including one with 60 or so cub scouts for an overnight stay at NASA) in a four day span.   

Out of all that, what really struck me was the trip up I35 to Dallas and Plano.  I always knew that traffic was bad, and I knew the statistics that a major percentage of all trade into the US travels up IH35 through Texas, but I never paid attention like I did last week.  But after really paying attention, I was amazed by how much tractor-trailers dominate the IH35 corridor.

Outside of Austin and Dallas proper (where there were a lot of passenger vehicles), big rigs made up at least 20% of the traffic on the highway.  In some long stretches, trucks made up 40% or more of the traffic, by my counts. 

And they really affect how the traffic flows.  In one instance, traffic was slowed as three trucks drove side to side, and in another, traffic was blocked as  four trucks were driving side by side.  In many instances, the trucks were driving in ways that posed risks to other motorists — speeding, tailgating, making lane changes without a signal, etc.

As I pondered all of it, it occurred to me that the miracle is that we don’t have more trucking accidents or trucking  fatalities along the I35 corridor.  Sure, we have too many.  But from really paying attention to the traffic, it could be a whole lot worse.  And that may be the miracle in all of this.

Posted on: February 21, 2011 |

Wrong Way Driver Kills Two and Almost Dies Himself Reports Austin Personal Injury Lawyer

A witness to a fatal crash is haunted by his attempts to try and avert the accident. It did not work and two died.

“It is not too often that when a person sees an accident about to happen that they try and avert it, like one driver did in this case we heard about. It was very early in the morning and a taxi driver was on the highway on the way to pick up a fare, when he noticed a pickup truck speeding the wrong way in the westbound lane. The truck was all over the place and in and out of traffic. It appeared the man behind the wheel was ripping along at about 80 miles per hour,” said Brooks Schuelke, an Austin personal injury lawyer with Perlmutter & Schuelke, L.L.P.

The cab driver flashed his headlights as a warning and then frantically tried to call 911. It was too late by then, as the accident had already happened before he had finished hitting the last number 1. As the truck was rounding a curve in the road, it swerved and then careened head-on into another vehicle, without ever hitting the brakes. The hit was a direct head-on, and the impact was ferocious.

“There were two men in the Jeep Cherokee that was hit by the pickup truck. One was 37 years old and the other, 42. Both men were pronounced dead at the scene of this horrific wreck of twisted metal,” Schuelke said. EMS crews thought the pickup truck driver was also dead, but he moved, prompting the ambulance to rush him to the nearest hospital, where he was listed in critical condition.

There is not much doubt that the families of the dead men will want to speak to a wrongful death personal injury lawyer about compensation for the loss of their loved ones. It is obvious the pickup truck driver was negligently and recklessly driving the wrong way on a one-way road. “That decision cost two innocent victims their lives. Whether or not drugs or alcohol, texting or distracted driving was the cause, the end result was that the pickup driver’s negligence was the proximate cause of the two men dying that morning,” Schuelke said.

The police report indicated that there will likely be charges pending in this case, although there was no specific mention of what types of charges were being contemplated. If there are criminal charges laid, which is entirely likely, and the man goes to jail, this does not preclude either of the families filing a wrongful death lawsuit. “If you have been in a similar situation, please do not hesitate to contact my office. We will take the time to explain wrongful death lawsuits to you and help you through the legal process,” Schuelke said.

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

Reckless Driving While Under the Influence Results in Three Vehicle Crash

Wrongful death comes calling in many different ways. In this instance, a wrong-way driver introduced the Grim Reaper to an innocent victim.

While you might like to think that every other driver on the road is alert and aware and takes great care and caution while driving a deadly vehicle, this is not always the case. In fact, far too often, the news is full of accident reports that list various injuries and deaths as a result of someone not paying attention, texting while driving, driving while drunk or driving recklessly. It does not take much to lose control of a car when you are drunk and/or high on drugs.

Consider the case of a high school teacher, fired from his position for drug use, out on a tear on the highway and driving in the wrong direction. As you might imagine, the end result of that lark, begun under the influence of drugs, resulted in a horrific head-on crash with two vehicles. It was not pretty.

The teacher was treated at the scene and taken to the hospital after he was arrested. EMS crews took the survivors for medical attention. Turns out, the police report detailed that the man was charged with DWI/DUI, criminal possession of a hypothermic needle and criminal possession of a controlled substance. The man was also found to have at least two prior convictions for drunk driving and drugs.

Would the estate of the victim, who did not make it out of that crash alive, have a wrongful death case? Most likely, yes, they would. There would be more than enough evidence to suggest to a jury that there was egregious behavior that cost someone his life. The police report alone would speak volumes about the driver’s state of mind and attitude the night of the crash. An Austin personal injury lawyer could use this report in court on behalf of a victim.

In a case like this, the criminal charges would need to be dealt with before a civil lawsuit may be filed. This would mean a possibly lengthy wait before the wrongful death suit could be launched. Additionally, in the unlikely instance that the driver was found not guilty of the charged offenses, they could still be tried in civil court, as a wrongful death suit is filed under the auspices of a statute and not the criminal code.

If you have been in a similar situation, call an experienced Austin personal injury lawyer and do not wait too long to do it. There is a Statute of Limitations for filing wrongful death actions and it would be wise to know what that is before you lose the right to sue.

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

Wrongful Death Lawsuit Filed Against School Over Death Of Nine Year Old Boy

Grief knows no bounds when children wrongfully die. This case was heart wrenching for the parents.

Unfortunately, the world has come to be a place that is not safe for our children, especially at school. The incidents of harassment and bullying are at an all time high in many American schools. It is actually to a point where it has gotten out of hand. It makes you wonder what happened to the time when you went to school and, while you may have had disagreements with other kids in the class, you were rarely harassed or bullied because you might have been different.

Things have changed in the schoolyards of today, and they have not changed for the better. Consider this case of a 9-year-old boy who committed suicide at school because he was being unmercifully harassed and bullied by other kids. When this happened last year, his parents chose to file a wrongful death lawsuit against the school and the school district.

The foundation of the lawsuit was that the school did not protect their son from the misery he suffered on a daily basis. The young boy had a lisp and a learning disability, and these two things combined made him an easy target for others. He was constantly being taunted about being “gay.” The other kids would not leave him alone. Kids with learning differences (identified and unidentified) are bully magnets.

One day, the Texas-born child hanged himself in the nurse’s bathroom at his school. The parent’s lives have never been the same since that fateful day in 2010. Was the behavior of the other children teasing or bullying? Is there a distinction? This was, in fact, bullying, and there is a distinction between that and teasing. In bullying, the main purpose is to hurt and isolate another, whether physically, emotionally or socially. It is usually directed at an individual and is often excruciatingly relentless to the point of being emotional torture.

When teasing happens, the people involved are having a good time, laughing, trading funny remarks back and forth and it all stops if someone feels hurt or uncomfortable. Usually, if it is teasing, a person who crossed the line with something will stop and apologize, and the world goes on.

Is a wrongful death lawsuit the right way to handle a tragic case such as this? Yes, someone needs to be held accountable for the life of a 9-year-old boy who trusted his school environment would take care of him and support him when he needed help. Instead, he was ignored even while the bullying continued. He had nowhere to turn, and finally, out of desperation, he took his own life.

Wrongful death lawsuits typically deal with a claim that a victim was killed as a result of the negligence or other unjust action of another person or entity. The victim’s survivors are entitled to compensation as a result of their actions or inaction. A wrongful death claim is not the same as a normal personal injury negligence lawsuit in which a person who is hurt receives damages for their injuries.

At one time, wrongful death claims did not exist, largely because it was felt their death claim died with them and the victim could not be compensated. This meant surviving family members could not claim compensation from the person responsible for their loved one’s death. Eventually, all states passed wrongful death statutes that now provide compensation.

Each state drafted their own versions of a wrongful death statute, and thus, there are often different criteria to be met depending on where your claim is filed. Generally speaking though, there are four elements involved in a wrongful death claim: the death was caused by the conduct of the defendant; the defendant was negligent in causing the death; there is a surviving applicable family member and that monetary damages have been incurred because of the person’s death.

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

Tort “Reform”: Does Governor Perry Not Understand “Loser Pays” Or Is He Trying To Defraud Texans? Part Two

Yesterday, I had a post about Governor Perry’s fraudulent attempt to sell his one way “plaintiff pays” tort reform idea as a “loser pays” system.

In that post, I talked about how the Governor’s attempt was not only fraudulent and unfair, but it also loses most of the benefits of a “loser pays” system that conservatives have been touting for years.

One of the more widely-cited studies of a “loser pays” system by conservatives is a 2008 article by Marie Gryphon of the conservative Manhattan Institute (and I’m not trying to categorize them as conservative, the first sentence in their Wikipedia page calls them conservative).

Perry’s one-sided proposal misses many of the benefits of a true “loser pays” system cited by Gryphon. In her paper, she says that we should all agree that a civil justice system have four goals:

What can we all agree that we want from our system of justice? The following four goals reflect widely shared values about how procedural rules of law should function, regardless of the underlying substantive law. This paper will evaluate the American rule and the alternatives to it on the basis of how well they serve these four very general and widely endorsed criteria. If a loser-pays reform proposal is superior to the American rule on those grounds, it should command broad support.

Compliance with the Law

 

Procedural reforms should have the effect of promoting compliance with the law. Although the merits of specific substantive legal rules might be debatable, if a body of law is generally just, the premise that procedural rules ought to promote legal compliance should be uncontroversial.

Compensation for Victims

 

All else being equal, a legal procedure is preferable to the extent that wrongfully injured victims are returned as nearly as possible to their uninjured states at the expense of the injurer. We may disagree about how costly such reparation must be before it becomes unduly punitive, but this paper will assume that full compensation for wrongful injuries is generally a desirable goal of procedural reform.

Low Transaction Costs

 

If a given procedure can uphold the law and compensate victims as well as or better than a different procedure, and do so at less cost, then it should be adopted and the alternative rejected.

Equitable Distribution of Costs

 

In general, a system that imposes heavy costs on a defendant who is not liable is inferior to one that does not do so. By the same token, a system that imposes heavy costs on a deserving plaintiff is inferior to a system that does not. Costs are equitably distributed, in this view, if they are borne by the wrongful parties or, to the extent that they are not, if they are shared by the society that benefits from the existence of a system of civil justice.

In arguing for “loser pays”, Gryphon looks at the goals and other policies and identifies five main benefits of a “loser pays” system:

  1. Compliance With The Law:  Gryphon argues that a “loser pays”  system  encourage defendants to comply with the law because wrongdoers face additional exposure for their wrongs in the form of having to pay the plaintiff’s attorneys’ fees and costs.
  2. Compensation For Victims:  A “loser pays” system obviously pushes us toward the goal of fully compensating victims by compensating victims for the attorneys’ fees and costs incurred in pursuing their rights.  As it stands, injured victims now are not fully compensated because they have to bear their own costs and fees.
  3. Equitable Distribution Of Costs:  Again, a “loser pays” system satisfies this goal for Gryphon because attorneys’ fees and costs would be paid by the losing party instead of by wrongfully accused defendants or wrongfully injured plaintiffs.
  4. Discourage Frivolous/Nuisance Lawsuits:  Gryphon argues that the tort system is burdened by nuisance lawsuits — those lawsuits where there isn’t really a case, but the plaintiff sues on the theory of “why not?” because there is a chance at winning and no disincentive to stop them from suing.  A “loser pays” system will provide some disincentive for these types of suits and limit the number of frivolous/nuisance suits being filed.
  5. Encourage Meritorious Smaller Claims:  Gryphon argues that another benefit of “loser pays” is that it would encourage meritorious, smaller claims.  Under the current system, most plaintiffs simply can’t afford to litigate small cases because attorneys’ fees would exceed the amount of the case. But allowing a plaintiff to recover costs and attorneys’ fees would provide a way for plaintiffs and attorneys to prosecute these claims.  (As a parenthetical, we see this all the time in auto accident property damage cases.  When cars are totaled, insurance companies seem to routinely make offers a couple of hundred dollars less than the fair value of the cars because they know plaintiffs can’t afford to sue for the difference.  A “loser pays” system might allow victims to pursue those rights and, at the same time, encourage insurance companies to pay full value of the claims.)

Unfortunately, Governor Perry’s “plaintiffs pay” proposal misses out on almost all of these  “loser pays” benefits cited by Ms. Gryphon, one of the right’s leading spokespersons on “loser pays.”  The only thing it helps is benefit number four, discouraging frivolous/nuisance lawsuits  (and that’s a benefit that doesn’t even fit under Ms. Gryphon’s four widely-held goals of a justice system). 

Perry’s “plaintiff pays” system doesn’t get any of the other benefits of a “loser pays” system as outlined by Ms. Gryphon.  In fact, Governor Perry’s proposal makes each of those worse.  A “plaintiff pay” system will undoubtedly have a chilling effect on legitimate claims.  As a result, it removes some of the incentive for businesses to compy with the law.  It also doesn’t meet the goal of fully compensating victims or equalizing distribution of costs because plaintiffs can’t recover their fees and expenses.  And finally, it doesn’t provide any way to prosecute smaller, meritorious claims.

So even judging it by the conservatives’ standards, Perry’s “plaintiff pays” proposal is a loser.

Posted on: February 11, 2011 | Tagged

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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