Resolving The Personal Injury Claims Of Minors

Many of our clients are minors who have been injured.  And those cases (at least in Texas) are treated a little bit differently.

The first difference is how the case is settled.  For an adult’s claim, the adult simply agrees to the settlement and signs the settlement agreement.  The lawsuit, if any, is then dismissed.

But minors can’t sign contracts.  To remedy that, the Courts have long used the guardian ad litem and friendly suit process.  In some cases, lawsuits are already on file, but if not, the parties would file a “friendly suit,” a lawsuit between the parties solely to get in front of the judge.  At that point, the judge appoints a guardian ad litem, who is a lawyer tasked solely with looking out for the interests of the minor.  The guardian ad litem would do some initial investigation, which includes reviewing the facts of the incident, reviewing medical records or other documents relating to the minor’s injuries, and talking to the minor’s parents to get a feel for the minor’s condition.  The parties would then have a “prove-up” hearing.  At the hearing, the minor’s parent or guardian tells the judge about the incident, the harm to the minor, and the minor’s prognosis.  The guardian ad litem then reports to the judge on whether the the guardian ad litem approves or disapproves of the settlement.  The judge then makes a decision to approve or disapprove of the proposed settlement.

Because this is a long (and sometimes expensive) process, insurance companies sometimes try to circumvent it.  Instead of going through the hearing, they will ask for a settlement that includes the parents’ indemnification for future claims.  What does that mean?  Without the prove-up process, the minor maintains the right to sue because minors can’t enter into contracts.  In order to protect themselves, insurance companies ask the minor’s parents to sign an agreement saying that the parents are settling the case and that, in exchange for settling the case, the parents agree that if the minor comes back at a later time and sues the defendant or the insurance company, then the parents will reimburse the insurance company and the defendant for attorneys’ fees, costs of court and for any amounts the companies had to pay.  Thus, the case is over, but the parents are taking the risk that the child later chooses to sue.

The other way personal injury cases for minors are different is determining where the money goes.  In a typical case with an adult, we’ll get settlement proceeds and simply write a check to the adult.  That doesn’t happen in cases with minors.

If the minor’s personal injury case goes through the lawsuit/prove-up process, the money can be deposited in the registry of the court, and the minor can’t withdraw it until the minor turns 18.  Alternatively, the money can be used to purchase a structured settlement — an annuity that pays the minor in periodic payments after the minor’s 18th birthday.  If economically feasible, most clients prefer a structured settlement.  The return on the investment is usually a little higher, but more importantly, some parents just don’t think it’s a good idea to give a child a reasonable chunk of money on their 18th birthday.

If the insurance company settles outside the lawsuit/prove-up process, then the lawyer needs to make clear to the parents that the money belongs to the minor and should be kept in an a separtae account for the minor.

Austin Auto-Pedestrian Collisions, Part II

Last week, I wrote about the Austin American Statesman’s feature on the increasing problem of auto-pedestrian accidents.  I noted that this was a reflection of the increasing number of auto-pedestrian accidents we’re seeing in our practice. 

Today, I saw that Drew Finke, a University of Texas architecture student, had his own interpretation of the issue in a column in the University of Texas newspaper, The Daily Texan

In the article, Drew makes a great point.  In part of the column, he writes:

Though Austin has recently made a commitment to encourage dense, pedestrian-oriented development, much of the inner city’s infrastructure is designed to accommodate the car. Nearly all of Austin’s “transportation corridors” are busy streets that currently include few provisions for pedestrians. Even along Guadalupe, which already boasts high pedestrian traffic, large stretches of road without crosswalks south of MLK and north of 24th Street make crossing inconvenient for pedestrians, and encourage motorists to speed along uninterrupted stretches of roadway. At the intersection of 24th and Guadalupe streets — where thousands cross every day — narrow sidewalks and disintegrating curbs make for a dangerous situation, between turning cars and the crowds of students waiting for the light to change before crossing.

While his example involves the UT campus area, the same principles exist downtown.  For example, at lunch today, I walked down San Jacinto street to eat lunch around the corner of San Jacinto and 1st.  For much of the walk, a large sidewalk was available.  But further South, the Vince Young Steakhouse and Max’s Wine Dive had outdoor patios that took up the walkway.  Thus, there was no sidewalk, and I was forced to walk in the lanes of traffic. 

That’s a particular concern since the area around San Jacinto has a lot of pedestrian traffic from downtown office buildings and from those using the convention center for its multitude of events. 

Let’s hope that future planners do a better job of taking pedestrians into account and design with pedstrians in mind. 

 

 

 

 

BBQ Food Poisoning? A Southside Market Recall

I’m a barbecue guy.  I was born in Lockhart (BBQ capital of the world), my first job was in a BBQ restaurant, and I enjoy hanging out around my own smokers when possible. 

That’s why I was so distressed to see that Elgin’s Southside Market has recalled more than 2,000 pounds of sausage  that may have been contaminated with the bacteria that causes listeriosis.

I hope nothing comes of it.  I’m always looking to time trips to Houston so that I can stop at Southside on the way out or on the way back home.  But if someone does end up getting sick, then something needs to be done.  Food poisoning is a serious issue, and I’m firm in my belief that lawsuits and the threat of lawsuits are an important incentive to restaurants and food suppliers to make sure that their food is safe.

Upcoming Speaking Engagements On Auto Accident Litigation

My schedule for April is heavy on speaking engagements.

On April 10, another lawyer and I are leading a four hour seminar on the basics of car wreck cases.  This will be a basic seminar directed to young lawyers and paralegals that cover the basics of most cases. 

On April 13, I’ll be speaking in Dallas for the State Bar of Texas Advanced InsuranceLaw Seminar.  There, I will be speaking on Uninsured/Underinsured Motorist Claims After Brainard.  This speech will be much more advanced and will be directed to lawyers from all over the state who practice insurance law.

If you’re interested in any of the topics or any of the materials, please let us know, and we’ll get it to you. 

Brooks Schuelke

Austin Auto-Pedestrian Wrecks An Increasing Problem

Sunday’s Austin American Statesman had a great article about the increasing number of auto-pedestrian fatalities in Austin.  While the bigger trend is for fewer traffic fatalities, the number of auto-pedestrian accidents and fatalities is increasing. 

Austin Police Chief Art Acevedo has two theories about the increase.  One, increased alcohol usage by motorists and pedestrians could explain part of the problem.  Additionally, people now have more disregard for pedestrians at intersections.

The APD is trying to do something about to decrease these auto-pedestrian accidents.  They will start sting operations to try and monitor dangerous intersections and ticket people for failing to properly allow pedestrians the right of way.

I’ve seen the problem in both my personal and professional life.  On the firm side, we’re seeing more auto-pedestrian and auto-bike accidents than we used to see.  I don’t keep track of those specific statistics, but I know that the numbers are significantly higher than they were just a few years ago.

On the personal side, I see people’s attitudes about crosswalks that Chief Acevedo mentioned in the article.  I usually drive home one of two ways, and each way has a cross-walk across a major road.  Each cross-walk has lights to increase attention to pedestrians — one is the new flashing red lights mentioned in the story and the other is a hanging yellow light flashing all the time.  And despite these efforts, I see people blow through the cross-walk areas all the time  (especially at the end of the day in rush-hour).  In fact, I’ve frequently had other motorists honking at me when I stop to yield to the pedestrians in the area.

This is a trend that needs to slow.  Leaders are trying to make Austin more and more bicycle and pedestrian friendly, but that will only happen if the risks don’t continue to increase.

Austin Personal Injury Lawyer Explains that Trucker Driving Logs Exist for a Reason

Altering the information in a truck driver’s log is more common than people think. It is also a crime.

“Truck drivers are required to keep a log of their travel to prove they complied with state and federal laws. There are a fair number of cases in which trucker’s or their employers have altered the driving log for trips. In some cases, there are two sets of books;  the one for inspectors to see, and the one that reflects the true number of hours a trucker logged,” commented Brooks Schuelke, an Austin personal injury lawyer with Perlmutter & Schuelke, L.L.P.

Consider the case that happened in North Carolina where a truck company owner chose to waive indictment and plead guilty on behalf of his company and individually to one count of violation of Title 18, U.S. Code, Section 1011. This meant he pled guilty to one count of making false statements.

The facts of the case show that the trucking company and its president doctored truck drivers’ duty status logs to hide the true number of hours their employees had driven. These numbers are required by Federal Motor Carrier Safety regulations, and they state there is a limit to the number of hours a trucker may drive to avoid accidents caused by driver fatigue.

Truckers are mandated to track their hours in a log book to make sure they do not go over the maximum number of hours allowed. They are also required to get proper rest breaks before hitting the road again. According to the charges in the North Carolina case, the owner of the trucking company falsified those logs because his truckers were driving more than the allowable number of hours by law. The owner and the company were also trying to avoid detection by law enforcement.

The man individually faces a maximum penalty of up to five years in jail, three years of supervised release and a fine of up to $250,000. The company he owned may face probation for one to five years and a fine of up to $500,000.

“It makes you want to ask if faking the books was worth it. From the point of view of the law, it was not worth it. From the point of view of a potential victim involved in a wreck with a big rig, it was not worth it. From the point of view of honesty and ethics, this man and his company failed the grade,” said Schuelke. The good news is that chasing down and charging offenders for altering log books is becoming more common.

Someone needs to take action to put a stop to dishonest individuals and companies trying to circumvent the law. Trucker’s driving logs exist for a good reason to save lives, to follow the law and to keep others on the road and the trucker safe. It is time money took a back seat to being safe, alert and honest while driving an 18-wheeler.

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

Brain Trauma Can Occur Even When Not Diagnosed with a Concussion

Head trauma without signs of a concussion is deceptive and may be just as deadly as trauma that clearly indicates the presence of a concussion.

While it is a good thing that the National Football League (NFL) appears to be taking the issue of concussions seriously, one has to wonder, since they did know about the risks, why they did not take it seriously before now. The answer may involve the drive to win at any cost, risking player safety to achieve that goal. Money would also play a large part in the decision to keep fielding players who had their bells rung on a regular basis, which has something to do with the tough guy image.

Parents and adults who play sports need to be wary of the myth that concussions are what cause brain damage, and that if they avoid getting a concussion, they are ok. That is not the case. Head injuries, whether they result in concussions or not, should be feared for their consequences in the short and long-term, and it is up to parents, coaches, players and school sports administrators to do something about it. Kids and young adults need to be protected.

Witness the case of Owen Thomas, who was the captain of the University of Pennsylvania football team. He took his own life at the age of 21. What did his brain show when it was autopsied? It revealed extensive evidence of chronic traumatic encephalopathy. This is the kind of damage that was typically a precursor to death by suicide in hockey and football players as the brain impairment affected their behavior and caused early on-set dementia, among other things. What shocked the researchers was that Thomas had never been diagnosed as having had a concussion.

Then how did he come to have traumatic brain injury? Over the years, he sustained multiple and repetitive sub-concussive head injuries. He started playing football when he was an adolescent and continued into this late teens and early adult years until his suicide. What is the solution to repeated concussive head injuries? One suggestion is that kids younger than 14 should not play sports noted for head trauma issues, but that is not likely to happen any time soon.

Other suggestions are to use better equipment, hold less hard-hitting practices, impose limits on hitting, or institute penalties for helmet tackling or launching players into one another. Unfortunately, the recent history of hockey, football and soccer is filled with acceptable violence in the pursuit of a win and a good time for the crowds. The fact that the players are jeopardizing their health in a serious manner doesn’t seem to register with coaches, fans, parents or even the players themselves.

If you or your child has been involved in a situation involving head trauma, don’t second guess the outcome or the liability of the situation. Make a call to a qualified Austin personal injury lawyer and find out where you stand. The law relating to sports and injuries does involve negligence, and this is an issue an Austin personal injury lawyer can explain to you.

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

Backup Cameras Can Help Reduce The Risk Of Backover Accidents

I was recently reading the book Out Of My Mind to my son.  It’s the story of a young girl who is brilliant, but who can’t communicate with others because she was born with cerebral palsy.  One of the most difficult “scenes” in the book is when  (SPOILER ALERT HERE), the young girl sees her little sister walk behind their car, but the girl can’t communicate this to her mother, who backs into the sister.

This is a scenario that scares me daily as I’m walking through parking lots with my kids.  Though I preach to them to be aware,  my kids don’t understand that the rear windows of most trucks, SUVs, and minivans are too high for their drivers to see any kids walking by.

This is a real problem throughout the country.  The National Highway Traffic Safety Administration estimates that 228 people die and 17,000 are injured each year in backover accidents.  Well over half of those fatalities are in children, and seventy percent of those are backed over by a parent or close relative, with one-year-olds being the most hit. 

Fortunately, backup cameras can greatly help reduce the risk of backover accidents.  These cameras, which are now available in almost half of the 2012 new cars, allow drivers to see children and other objects that are behind them. These mirrors may also become more popular due to federal government regulations.  In  2008, then President Bush signed legislation that would require manufacturers to include that the cameras be required in new vehicles.  That requirement is expected to be issued by the end of the year.

In the meantime, keep an eye on your kids and an eye out for other kids to help decrease the risks of these tragedies.

 If you or a loved one has been involved in a backover accident, please feel free to call us.  Victims of backover accidents may make recoveries against the other driver, but may also have claims against uninsured/underinsured motorist insurance policies.

Soccer May Also Result in Traumatic Brain Injury

The more you look, the more the world of sports is becoming a dangerous place to play. Head trauma is a serious issue.

Just when you thought you had heard all there was about traumatic brain injury in football and hockey, you then find out this type of injury is prevalent in soccer. Players perform a move referred to as heading, which refers to using their head (sans protection), to redirect or stop a soccer ball. Soccer balls travel at very high speeds, and the force of impact on the skull tosses the brain around. The result? Concussion, also called traumatic brain injury.

While the cognitive impairment may be mild in the case of athletes heading the ball, if a string of these incidents were sustained over a period of time, the cumulative effect could be detrimental. Given the number of soccer players worldwide, this is an issue that bears investigation. Like football, the long-term effects of continually heading may not be known until later in a player’s career or if they donate their brains to science for study. For instance, renowned British footballer Jeffrey Astle, noted for his slamming headers, died of degenerative brain disease in 2002. His damaged brain showed the trademark signs of chronic traumatic encephalopathy.

In a smart move to be proactive, rather than reactive, researchers have published an article about heading in the January 2012 issue of Neurosurgery, indicating caution is the better part of valor. Since many young children play this sport, it would make sense to urge them to refrain from heading the ball until they develop the correct neck strength and proper body control to head a ball properly. Despite knowing the right technique, this is not to say accidents will not happen, because they do.

In anticipation of the debate growing even more strident, many soccer clubs are considering headgear of some sort to absorb the shock of the ball aS it connects with the skull. Soccer balls today are not made of leather, which may lighten their impact as leather is noted to absorb water that creates a deadlier head hit.

Even though those who play sports are playing with the knowledge that they may be injured, there is a line that should not be crossed. That line is the teams fully informing all players of the potential risks of playing the game, including the chance they may suffer cognitive impairment and death from cumulative head hits. You may recall that 21 former National Football League players filed a class action lawsuit against the league for not telling them that they knew about the risks of repeated traumatic brain injuries.

Generally speaking, if negligence is involved in a sport, such as not informing players of all the risks, there may be a good case for filing a lawsuit with the assistance of an Austin personal injury lawyer. Not all cases are the same, and each one has its own set of facts that will determine how a lawsuit may proceed. It is the Austin personal injury lawyer’s job to advise you if you have a case, if it stands a chance of winning and how you may expect your case to develop as it heads toward a settlement or a jury verdict.

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

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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