Playing sports is a right of passage for many kids. But kids can suffer serious head trauma and jeopardize their future.

It goes without saying that playing sports is a big part of going to school. Volleyball, basketball, football, hockey, and soccer are some of the most popular sports. Kids risk sustaining serious injuries if they have a concussion while playing sports. A pattern of concussions during youth has an impact on cognitive functions later in life. Those who continue to play sports face the reality of dying if they get hit once too often.

Although head injuries seem to be quite prevalent in just about any sport, there is not a lot being done about it. It is talked about and many people worry; yet, there is not much in the way of training and education about the seriousness of head injuries and prevention.

New Jersey recently introduced a bill into the legislature that would mandate athletic coaches to actively participate in a head injury prevention training program. It is about time. Kids are our future, and we need to not only protect them from serious head injuries, but train and educate them about what traumatic brain injury is, how to recognize it, avoid it if possible and how to deal with it should they get hit. With enough people supporting the bill in New Jersey, the program may start to be utilized in other states, even Texas.

While it is true that anyone may sustain a head injury, athletes are more likely to get thumped in the head because of the nature of the games in which they participate. Most often, head injuries are the result of a blow to the head or even being violently shaken. Any blow to the head has the potential to result in a concussion, which is an injury that alters the way the brain works. Even if the injury is mild, there are still long-lasting repercussions. Moderate to severe injuries have the potential to lead to a vegetative state and death.

Will the New Jersey bill do what it is intended to do? That is a tough question, but so far it looks like it may be off to a good start. However, the bill excluded cheerleaders because what they do is not considered to be a sport, but is classified as an activity. That is odd, given the well-documented fact that cheerleaders many protests.

For instance, many will recall the pyramid stunt and the media frenzy in 2006 when Kristi Yamoaka sustained a fractured vertebra after she fell from a human pyramid and hit her head doing this stunt. She suffered a concussion and badly bruised a lung. Although she eventually recovered, not everyone is as lucky. Thankfully, the protests paid off and cheerleaders were subsequently included in the bill. If every state had a bill like this, head trauma incidents might just decline.

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

I’ve represented a number of people in lawsuits against their builders.  Several years ago, one of my clients and I half-joked that we were going to write a book together about avoiding bad contractors. 

We never got around to writing the book, but I do want to share some of the tips.  Because while tragedies oftentimes bring out the best in people looking to help others, they also bring out the worst in people — those that want to take advantage of the situation.

Here are some of my tips.

1.  RESEARCH YOUR POTENTIAL BUILDER.  First, ask for recommendations from those you know and trust.  Once you get those recommendations, research the options.  Do the traditional research by asking for references & checking up on those references.  But also go that extra step and look online to see what reviews or complaints your builder might have out there.  Given the large investment you’re about to make, it may make sense to even pay a little for services such as Angie’s List.

2. MAKE SURE YOU UNDERSTAND THE CONTRACT.  Contracts are confusing, and the construction contract will likely be for more than $100,000.00.  That’s a lot of money.  Make sure you understand whether you’re entering into a flat fee contract or a cost-plus contract.  Make sure you understand the scope of the work that is included in the contract (as opposed to what might be upgrades or additional charges).  Make sure you understand the warranty that the builder may be offering.  A little work up-front can prevent huge problems later.

3. DON’T PAY THE CONTRACTOR TOO MUCH UP-FRONT.  We sometimes see cases where the profit in the job is in the earlier part of the construction so the builder, satisfied with those early profits, walks off the job.  You need to make sure that the negotiated payments provide an incentive for the contractor to stay on the job. 

4. MAKE SURE THE CONTRACTOR IS PAYING THE SUBCONTRACTORS.  Under Texas law, if the contractor doesn’t pay the subcontractors, the subcontractors can put a lien on your house.  You can minimize the risk of that happening by requiring the contractor to provide you lien releases from the subcontractors with each draw request.  Lien releases are formal documents from the subcontractors saying that they have been paid through various points of the project.

5. CONSIDER HIRING AN INSPECTOR TO COME INSPECT THE CONSTRUCTION PROCESS.  This is an extra cost, but it’s worth it to make sure the house is being built properly.  Again, it is worth paying someone to make sure that the framing is done right, that the windows and other penetrations to the home are flashed properly, etc because those types of defects can cause a lot of damage and be expensive to repair later on down the road.

These aren’t all the tips, certainly, but if you follow these instructions, I think it’s a little less likely that you’ll be taken advantage of or be the victim of shoddy workmanship.

Yesterday’s Austin American Statesman featured the tragic story of Carmen and Javier Chaparro, recent victims of the Bastrop County fires.  The Chaparros seem like great people.  Javier is a professional musician, and Carmen is a teacher who works with special-needs kids.  But sadly, after the fire, the Chaparros discovered that they didn’t have enough insurance to cover the losses of Javier’s cherished $50,000 violin or other instruments and his recording equipment.

While that’s a hard lesson to learn, the Chaparros are in good company.  For years, we have represented people in insurance claims (including my just finishing up a large lawsuit against Safeco stemming from a fire at my client’s home), and I would estimate that at least 75% of those clients don’t have enough insurance to fully cover their losses in the event of a tragedy.

With homeowner’s insurance, you are buying two types of coverage.  The first coverage, dwelling coverage, covers the cost to repair or rebuild your home, depending on the extent of the damage.  The second coverage, contents coverage, covers the cost to replace the contents of your home — your personal belongings that are destroyed.  Most people have both of these coverages too low.

For dwelling coverage, the fact is that it’s just expensive to build in the Central Texas areas, and most people don’t have an idea of what it would cost to rebuild their home.  Insurance companies have formulas they use to estimate those costs, but often those estimates are wildly inaccurate. 

My family is a perfect example of that.  Five years ago we did a fairly extensive remodel of our home.  During that process, I talked to my insurance company about increasing the limits of our dwelling coverage.  The insurance agent came back with an estimate of what it would cost to completely rebuild our house should something happen.  But the estimated cost was less than what we had spent to do a partial renovation (and that included my wife and I doing much of the finish work — painting, installing flooring, installing trim work, etc).  I knew that there was no way we could rebuild the entire house for the amount suggested.  (And our house is small — approximately 1,500 square feet after our addition — the differences will only increase with larger houses.)  Fortunately, with the help of our builder and my dad (who is in the commercial construction industry) we were able to get an amount that would help us rebuild in the event of a disaster.

But most people don’t have that luck and luxury, and they end up with too little insurance.  Do what you can to make sure you’re not in that boat.  It’s worth paying a small amount to get an opinion from a builder or someone else to make sure that your insurance is enough to rebuild your home.

The same goes for contents.  Most people are underinsured on their contents coverage because they don’t really take the time to look at everything they own.  People own a lot of “stuff” these days, and replacing all that stuff is expensive.  When you’re renewing your insurance, take the time to really look at what you own, and be honest in what it might cost to replace it.  (Also, just in case you’re in something like this, document what you have.  Take five minutes to run through the house with a video camera, and then keep the tape or disc somewhere else, like an office or another family-member’s home, so you can access it if something happens to your home. That five minutes can save you hours and potentially tens of thousands of dollars at a later time.)

Also, let me add that it’s important to know what coverage you are buying.  Several years ago, the Texas Department of Insurance required homeowner’s insurance companies to write standard policies  (generally, 95% of the policies were called HO-B policies).  Because the policies were standard, a homeowner could shop around from insurance company to insurance company and know that they were comparing apples to apples.  But, in a huge disservice to homeowners, the insurance department decided to allow companies to write their own policies.  Now, when the average homeowner is calling around to different agents to get quotes, it’s almost impossible to know whether you’re getting quotes on the same types of policies.  Most often, you’re not.  Now, every policy is different.  That’s why it’ so important to sit down with your insurance agent and tell them about your circumstances, and get them to explain the policy to you.  I know it’s boring  (and I do it for a living), but it’s the only way to really make sure you’re protected.

Being underinsured isn’t limited to homeowner’s insurance.  I’ve repeatedly written that people need to protect themselves in the auto insurance context by buying uninsured/underinsured motorist coverage and personal injury protection coverage when they purchase auto insurance. (You can also read another post on the need for this coverage:  San Marcos DWI wreck shows need for uninsured/underinsured motorist coverage.) 

While much of our time is spent fighting insurance companies, we do recognize that it has a place.  Please learn from the Chaparros’ (and my clients’)  experience to make sure that you are properly covered by your insurance should you need it.

I’ve handled a number of homeowner’s insurance claims.   With the horriffic fires of the last two days, I wanted to at least make a post and provide a little information for those victims who are faced with making fire insurance claims.  Fortunately, the potential claims you’re facing are not quite as complicated as most homeowners’ insurance claims.

Most homeowners’ insurance claims will have two parts — real property claim and a contents/personal property claim.

The real property claim is for the damage to your actual structure —- the dwelling or home.  Generally, when you’re making a claim there are fights with the insurance company about the extent of repairs necessary from the event and the cost of those repairs.  Fortunately for you, most fire victims are able to avoid this fight.  Section 862.053 of the Texas Insurance Code provides that when there is a total loss by fire, then the full amount of the policy limits are due.  In most cases where there is extensive damage, there isn’t an argument about whether the home is a total loss, and thus, the insurance company is required to pay the full amount; there isn’t any quibbling about scope of repair, costs to make those repairs, etc.  The insurance company should just pay the full amount to you.

The personal property/contents claim is the claim for your furnishings and possessions.  That includes furniture, clothing, household items, etc.  Sadly, most people are underinsured when it comes to contents — they just don’t really have a good estimate about the value of the items in their houses.  As a result, when fires completely destroy a home, most homeowners will be owed the full amount of coverage provided by their policy.  You may have to jump through some hoops to get it — making an inventory of what you lost, estimating costs, etc.  But in most situations, you will not have any difficulty identifying enough losses to justify full payment.

To all the victims, good luck in going forward.  You are certainly in our thoughts and prayers as you try to rebuild your lives.

Today, the Consumer Product Safety Commission had a fireworks safety conference on the National Mall in Washington, DC.

According to the CPSC, in 2010, approximately 8,600 Americans ended up in hospital rooms because of fireworks injuries.  Most of these injuries involved burns to the hands or the face.  Sadly, about 40 percent of the injuries were to children younger than 15.

There are several key components of firework safety.

PREVENT FIREWORKS INJURIES.  Don’t let you, your children, or your friends become victims.  Follow these recommendations from the CPSC:

• Never allow young children to play with or ignite fireworks.
• Avoid buying fireworks that are packaged in brown paper because this is often a sign that the fireworks were made for professional displays and that they could pose a danger to consumers.
• Always have an adult supervise fireworks activities. Parents don’t realize that young children suffer injuries from sparklers. Sparklers burn at temperatures of about 2,000 degrees – hot enough to melt some metals. (I highlighted this one.  Too often we think of sparklers as harmless toys, and we let kids use them.  This was truly shocking to me.  Brooks)
• Never place any part of your body directly over a fireworks device when lighting the fuse. Back up to a safe distance immediately after lighting fireworks.
• Never try to re-light or pick up fireworks that have not ignited fully.
• Never point or throw fireworks at another person.
• Keep a bucket of water or a garden hose handy in case of fire or other mishap.
• Light fireworks one at a time, then move back quickly.
• Never carry fireworks in a pocket or shoot them off in metal or glass containers.
• After fireworks complete their burning, douse the spent device with plenty of water from a bucket or hose before discarding it to prevent a trash fire.
• Make sure fireworks are legal in your area before buying or using them.

Injuries to friends and families often result in lawsuits.  Obviously, people that are messing around and doing ridiculous things like shooting fireworks at others can be sued for any injuries they cause.  But the potential claims go beyond that.  For example, if parents are negligent and either give their children (or other children) fireworks or if the parents fail to properly supervise the kids, then the parents could be sued for any injuries the children sustain or cause.

Obviously, the most important part of this warning is avoiding the injuries altogether.  None of us want the holiday season ruined by a hospital visit.

PREVENT FIRES.  In addition to the typical injuries, we face additional problems in Austin and Central Texas (really, all of  Texas).  Even after last night’s rain, we’re still in a drought, and the area is still dry.  A huge risk this year is that fireworks spark serious fires. 

Not only would these be devestating, but lighting fireworks that result in a fire that damages someone else’s property or causes them injury could result in a lawsuit against the person shooting off the fireworks.

BEWARE OF GEL-FUELED POTS & BURNERS.  One of the new issues the CPSC is highlighting in its conference is that dangers of gel-fueled pots & burners.  You will see these as tiki torches, pots you burn to keep bugs away, etc.   There are also new fire starters for grills that are gel based.   These items are highly dangerous and causing increasing injuries. 

There are several factors that make these so dangerous.  First, the fires are hard to put out.  Unlike most fires, the only effective way to put out a significant gel-fueled fire is by using dry chemicals.  This means that stop, drop & roll doesn’t work; it means that trying to beat out the fire doesn’t work.  You have to use a fire extinguisher or baking soda to put these fires out. 

The second thing that is so dangerous is that you can’t see the flame.  Unlike traditional fires, when these gels are burning, they don’t produce a flame.  If you see someone whose shirt is burning, there’s no way to know where the fire actually is  (you will see char marks after the fact).  That makes it hard to put these fires out.

The key for safety is to be aware of the extreme dangers so you will be cautious when using these items. 

Below is a story from the Today show that talks about the CPSC’s demonstration.

Visit msnbc.com for breaking news, world news, and news about the economy

A problem for potential clients is knowing what to look for in a potential personal injury lawyer. One thing I always advise is to find out whether your lawyer is a member of the Texas Trial Lawyers Association and, if in Austin, the Capital Area Trial Lawyers Association.

The Texas Trial Lawyers Association is the largest collection of plaintiff’s personal injury lawyers in the state. The Capital Area Trial Lawyers Association (of which I am secretary and on the executive committee) is our local chapter of Austin personal injury lawyers.

The great thing about these organizations is the attorneys’ willingness to share and help each other out. The continuing education courses are among the best I’ve ever attended. But the jewel of each may be the listserves that each operate. Hundreds of lawyers around the state are continually willing to share their knowledge and experience to help others. The listserves of each are among the best ways I know to stay abreast of changing issues of law, trial techniques, etc.

Yesterday was a prime example of the potential value of TTLA/CATLA membership and the listserves.

I had a hearing in a North Texas county involving an uninsured/underinsured motorist case. The issue at the hearing was whether I was entitled to take a deposition of a representative of the insurance company.  I had requested the deposition, and the insurance company had filed a motion with the Court arguing that it was not required to provide the deposition.

When we arrived for the hearing, the Court informed me that he had read the motion and that it was his understanding from his practice that the insurance company was not required to provide the deposition.  I argued that the case was identical to the case of In Re Garcia, a 2007 opinion from the San Antonio Court of Appeals, where the Court held that the trial judge had made an error by not allowing the deposition.  I prevailed.

The amazing thing about the hearing was that neither the Judge nor the opposing attorney, who routinely represents insurance companies in these types of cases, had heard of the In Re Garcia case.  But this is a case that is routinely discussed on both the TTLA and CATLA listserves.

What does that mean to potential clients? Even though this case is four years old, most lawyers aren’t using the case to get depositions in these uninsured/underinsured motorist cases.  But TTLA and CATLA members are.

This is just one example of many on how TTLA and CATLA benefit lawyers and their clients.  We continually collaborate on hot-button issues to give each other the opportunity to make the best arguments that can help our clients.  (For example, I have a paper on uninsured/underinsured motorist coverage I prepared for a speech to the Capital Area Trial Lawyers that I’ve probably shared 50 times with lawyers around the state to help make sure they are making the best arguments for their clients.)  The ways we help each other are too numerous to list.  We bounce ideas off of one another;  we help each other evaluate potential settlement values of cases; we help each other with suggestions of which experts might be good  (or not good); we share with one another depositions of defense experts to help each other prepare for our own depositions.  The list goes on and on.  And in the end, we provide our clients better representation because we’re members of the organizations.

While there isn’t any guarantee that a TTLA or CATLA member will be a great lawyer (certainly, I’ve fielded questions from lawyers in our organizations that puzzled me), I think the lawyers in the groups have a better opportunity, and hiring mem bers of those organizations is probably a better test for potential clients than just hiring who has the best yellow pages ad or television commercial.

Hip hop singer Sean Kingston was seriously injured in a jet ski accident over the weekend. 

Sadly, Mr. Kingston is not alone.  Jet skis and personal watercraft are some of the most dangerous vehicles on the water. 

In Texas, the use of personal watercraft is fairly well regulated, though most users don’t seem to know about the rules in the Texas Water Safety Act. 

Some of the rules that have been highlighted by the LCRA, which controls most lakes and rivers in the Austin and Central Texas area are:

• Children under 13 are prohibited from operating a personal watercraft unless accompanied by an adult.
• A Texas Parks & Wildlife boater education certificate is required for boaters between 13 and 17.
• Each person riding or being towed by a personal watercraft must be wearing a life jacket.
• It is illegal to operate a personal watercraft between sunset and sunrise.
• It is illegal to operate a personal watercraft within 50 feet of shoreline, structures, swimmers, or other water craft unless going at no-wake speed  (just enough to power the boat).
• The ignition safety switch must be attached to the driver.

And perhaps the most important thing to know about personal watercraft safety is that many designs require power to steer the boat.  Typically, when you experience a potential problem (another boater, obstacle, etc), the first reaction is to let off the power and then steer.  But in poorly designed personal watercraft, letting off the power results in a loss of steering, guaranteeing a wreck.  There are a number of product defect lawsuits arising over this poor design.

So the lesson to be learned is that as you’re headed out to the lake this summer, be careful.

Tragedy randomly struck two families whose teenaged sons died at the bottom of the ocean. It is unclear what caused their deaths.

“This reported case was a great shock to the two families involved,” said Brooks Schuelke, an Austin personal injury lawyer with Perlmutter & Schuelke, L.L.P. “Two young men, ages 16 and 17, went missing from their charter boat on a diving expedition. They were subsequently found at the bottom of the ocean in full cardiac arrest.”

The two were out for the day on an expedition to dive in Monterey Bay. The day started out normally enough when the two suited up to dive. It was not until the two did not return to their charter boat at the appointed time that the crew mounted an all out search for them. “Forty-five minutes later, they were located on the sand at the bottom of the ocean, brought up and taken to hospital with paramedics performing CPR all the way. Neither of them made it and were pronounced dead at the hospital shortly after arrival,” Schuelke said.

The police report was not clear on when the two young men got into trouble or what happened that caused them to lose their lives. The best estimates they could approximate indicated the two may have experienced trouble at a depth of 40 to 80 feet. Why that happened remains a mystery and there are many unanswered questions that need answers.

“For instance, did the two have defective diving gear? Non-functional hoses? Contaminated air? Or had they both descended too far too fast, and realizing they may be in trouble, started to rocket back to the surface, and experienced the bends? Only the coroner will be able to answer those questions now. Once the families know the results, they may wish to call an experienced injury lawyer and discuss their options,” Schuelke said.

Every personal injury case, such as these wrongful deaths, is different. No two cases are alike, but they may be similar – similar enough to allow a lawyer to outline what may happen when a lawsuit is filed. If it is a wrongful death lawsuit, there is a different approach taken to put together a case, as opposed to a product liability or defective product lawsuit.

The circumstances of a case largely dictate what type of lawsuit may be filed, which means a case could involve two facets of law at the same time. For example, a wrongful death as the result of a defective product. “If you have experienced the loss of someone you loved as a result of an accident, make a call to an experienced Austin injury lawyer. It’s my job to explain how wrongful death cases are filed, what you may expect if we go to settlement or to court, and how long your case may take,” Schuelke said.

Wrongful death cases are filed under a specific statute, and are not the same as personal injury cases; a distinction many people do not quite understand. Hiring a skilled Austin injury lawyer will help you pursue your goal that justice is done and the award is one the plaintiff deserves.

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

You always have to feed the beast. 

Every legislative session the insurance industry and its lobbyists succeed in winning legislative victories that take away your rights.  And depsite these wins, they keep coming back for more.  It’s time to tell them enough — quit coming back for more.

This year, the insurance industry and its lobbyists have introduced another bill that would seek to limit your rights.  Yesterday, that bill was sent back to committee.  But today, Rick Perry acted as the insurance industry’s white knight and declared tort reform an emergency issue so the bill would get a vote tomorrow  (going ahead of much more important issues — like the budget or education). 

You won’t trust me about what I say about the bill so I’m posting a blurb from Texas Watch, one of the only advocacy groups in the state that works to make sure insurance companies don’t take advantage of their customers.  Texas Watch says:

Dangerous legislation pushed by lobbyists for polluters, insurance companies and other corporate wrongdoers is on its way to the floor of the Texas House tomorrow. The bill (HB 274) is designed to intimidate Texas families and small businesses into foregoing the legal accountability process, thus immunizing dangerous corporations when they cause needless death, injury, or financial devastation.

This legislation threatens Texans with the possibility of having to pay the bloated legal costs of big insurance companies or multinational corporations like BP or Wal-Mart. The lobbyists call this “loser pays,” but really it is “families pay” because only individuals – not corporate defendants – would be forced to pay. What’s worse is that you could see your life savings wiped out not only if you lose a valid lawsuit, but even if you just don’t win big enough. In other words, you can win… and still lose.

Florida’s experience with a similar legislation was so bad that lawmakers there repealed it just five years later. In fact, commonly known as “British Rule,” this sort of legislation was rejected by our founders more than two centuries ago because it guts individual liberties. Now, even the British themselves are considering abandoning it in favor of our American system.

If we don’t act now, this dangerous bill aimed at protecting big insurance companies and polluters at the expense of families and small businesses will become law. Tell your state representative that Texas families can’t afford HB 274.

Texas Watch has also written other articles about the bill.  They include:

• Perry Thinks Corporate Immunity Is An Emergency…Really?
• “Loser Pays” Means Families Pay
• Audio recording:  “Loser Pays” Is Really Intimidation of Average Texans

Please take two minutes to contact your state representative and senator and let them know that you oppose this type of legislation.  You can find your legislators’ names and contact information here. 

Sorry for sparse posting the last two weeks, but we’ve been swamped with trial prep  (my trial set for next Monday settled earlier this week) and an office move.

As of Monday, our new address will be:

Perlmutter & Schuelke, LLP

206 E 9th St., Ste. 1511

Austin, Texas 78701

We hope to get back to posting regular personal injury news once we get settled back in.