Perlmutter & Schuelke, LLP, Austin Attorneys » Premises Liability

Do Personal Injury Lawyers Try To Scam You In The Settlement?

brooks — Wed, 10 Feb 2010 15:05:44 +0000

This is from another Google search that someone used to find our website.

I’d like to tell you unequivocally that the answer to the question is “No.” But I can’t (after all, we do a lot of legal malpractice work also so we know what lawyers are capable of doing). In truth, it’s really rare than a personal injury lawyer tries to scam a client in a settlement, but it does happen. (Don’t let that be an indictment of lawyers, in general, or personal injury lawyers, specifically. Every profession has a few bad apples. I’d like to tell you lawyers are exceptions to that rule, but we’re not. )

The more important question may be, “What can clients do to protect themselves and minimize the risk that they will be victims of a lawyer’s scam?” And the best answer is to be informed. Most personal injury cases are handled on a contingency basis. In general, the attorney will receive the settlement funds or funds following a judgment and deposit the money in the attorney’s trust account. Once the funds have cleared, the attorney will disburse the funds to all of the parties entitled to a portion of the settlement funds. In general, the groups that generally receive part of personal injury funds are:

The lawyers (who receive their fees and reimbursement for the expenses they advanced);
Medical providers (who might have outstanding balances that are paid out of the funds); and
Subrogation interests (paying back health insurance companies, Medicare, Medicaid, or any other group that may have paid part of the client’s medical expenses and/or paid for any of the client’s lost wages).

After all of these items are deducted, then the remaining funds are disbursed to the client.

So how do clients protect themselves? Make sure the calculations are done right and ask for documentation. Clients should make sure that they understand their fee agreement with their attorneys so that the clients understand how the fees are calculated. Clients should also not be afraid to ask for documentation to support the deductions. Reputable personal injury lawyers should not have have any problem providing an accounting of expenses, including showing receipts and/or canceled checks for expenses. Similarly, for payments made to medical providers or subrogation interests, the clients should be comfortable requesting copies of the checks written to each of these entities. If the client still doesn’t trust the lawyer, the client may also call the medical providers or the subrogation interests to make sure that the payments were actually made.

Taking these steps will help protect the client and, if the lawyer is trying to cheat the client, help the client figure that out.

Texas’s New One Free Murder Rule

sbrennan — Wed, 03 Sep 2008 17:14:36 +0000

I have often been quick to criticize the current Texas Supreme Court regarding its decisions in the tort arena, but last week, they may have outdone themselves. Last week they handed down a decision in Trammel Crow v. Gutierrez that has emasculated inadequate security premises liability cases – cases where the injured person says that land owner knew about dangers from criminals but failed to protect customers or visitors to the land.

In Texas, a person or entity that controls a premises has a duty to use ordinary care to protect invitees (in most cases, customers) from criminal acts of third parties if the person or entity knows or has reason to know of an unreasonable and foreseeable risk of harm to the customer. These cases are all fought on two questions: Did the defendant control the premises and was there a foreseeable risk of harm to the customer?

In the Gutierrez case, Mrs. Gutierrez filed suit against Trammel Crow after her husband was shot and killed by an assailant dressed in black during a botched robbery in the parking lot of a San Antonio mall.

In the case, Trammel Crow admitted that they controlled the premises. The only question before the court was whether it was foreseeable that this murder might have occurred.

At the trial, the plaintiff presented evidence that in the two years before the murder, the mall had seen 227 reported crimes, 24 personal crimes, and 10 violent crimes involving aggregated robbery.

In addition, the security guard (and off-duty police officer) on duty the night of the murder testified that he saw two men dressed in black standing by a pay phone and made eye contact with them.

Hearing this, the jury found that it was foreseeable that the crime would be committed and awarded the widow and four children $6.5 million.

The Supreme Court reversed and found that the crime was not foreseeable. They went through each prior crime and parsed out examples of why those crimes were different than the one in the case. For example, some of the ridiculous distinctions were that in one crime, the assailants accosted the victim first, took his valuables, and then attacked him, whereas in this case, the victim was first attacked and then robbed. They noted that some of the robberies had indeed involved guns, but in none of those cases were the guns actually fired.

This type of parceling and categorizing of crimes basically creates a “one free murder rule” and maybe more than that. There is nothing to stop the court in future cases from categorizing murders and saying shooting deaths don’t necessarily mean that stabbing deaths are foreseeable. As long as the Supreme Court continues to substitute its judgement for that of our juries, justice will never be done.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, LLP or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

West Virginia Supreme Court Justice Criticizes Tort Reform

sbrennan — Thu, 03 Jan 2008 19:03:12 +0000

Last week, West Virginia Supreme Court justice Larry Starcher railed against West Virginia’s tort reform. In recent years, West Virginia has passed medical malpractice tort reform measures that require plaintiffs to provide pre-suit expert reports saying that the claim has merit. The reforms also have caps on damages.

Because plaintiffs want to avoid these requirements, there is often a fight about whether the claims are medical malpractice claims subject to the tort reform laws. In the recent West Virginia case, the plaintiffs were suing the manufacturer of contaminated sutures and the medical providers that administered them. The court ended up holding that the claims were health care liability claims subject to the act.

In a dissent, Justice Starcher wrote:

I dissent to express my hope that, in the future, the court or the Legislature will recognize the absurd and unconstitutional effects of the (reform) and either strike down or repeal (the reform in its entirety.

Application of the (reform) to the instant case clearly demonstrates the absurdity of the (act), and demonstrates why the Legislature should exercise restraint when it attempts to meddle with centuries-old common law principles.

Sadly, Texas courts have had no trouble finding that the Texas medical malpractice act applies in what would seem absurd situations. The snowball started in 2005 with the Texas Supreme Court’s decision in Diversicare v Rubio, where the court held that the Texas medical malpractice laws applied when a nursing home resident sued a nursing home after the resident was sexually assaulted by another patient (who had a history of sexual assault).

In 2007 alone, Texas appellate courts have used the Rubio case to find that the Texas medical malpractice reforms covered claims by a patient who was sexually assaulted during an exam (Vanderwerff v. Beathard – Dallas court of appeals), by a patient who was injured when the bed she was sleeping in collapsed (Christus Health v. Beal – Houston), by a patient who fell while getting out of bed because the foot of the bed he was using to help himself get up fell apart (Marks v. St. Lukes Episcopal Hospital – Houston), and by a patient suing a doctor for disclosure of confidential information (Sloan v. Farmer – Dallas).

Each of these cases results in a strange anomaly. If a third party visitor to a hospital or doctor’s office is sexually assaulted by another patient or a staff member, that visitor has an assault claim. But a patient is limited to a medical malpractice claim. Similarly, if a visitor goes to see someone in the hospital and is sitting on a bed and it collapses, that visitor has a products liability or premises defect claim. But, again, a patient is limited to a medical malpractice claim. In each case, the stranger receives more protection from the law than the actual patient.

Lawmakers Criticize Texas Supreme Court

sbrennan — Wed, 12 Dec 2007 19:19:03 +0000

In what may be unprecedented, a bi-partisan group of Texas lawmakers filed an amicus brief with the Texas Supreme Court asking them to overturn their decision in Entergy v Summers. In that August 31, 2007 opinion, the court was faced with the question of whether a premises owner was a “general contractor” under the worker’s comp provisions of the Labor Code.

The Texas Labor Code provides that if an employer purchases worker’s comp insurance, an employee can’t sue its employer for injuries sustained in an on-the-job accident. In later sections, the statute also provides that if a general contractor purchases worker’s comp insurance that covers the employees of the general’s subcontractors, then the general contractor is considered the employer of the sub’s employees for purposes of worker’s comp laws. In such a situation, if an employee of a sub is injured in an on-the-job accident, then the employee couldn’t sue the general contractor. Contrast that to the situation where the sub buys its own insurance for its employees. In that situation, if a sub’s employee is injured, then the employee can’t sue the sub (his employer) but could sue the general contractor if the general’s conduct contributed to the employee’s injuries.

In Entergy, the plaintiff was an employee of International Maintenance Corp. The company had contracted with Entergy to provide construction and maintenance on Entergy’s premises. In exchange for a reduced contract price, Entergy agreed to purchase worker’s comp coverage for IMC’s employees. The plaintiff was injured and sued Entergy for his damages.

Entergy argued that because it was the entity that purchased the worker’s comp insurance then it should be considered a “general contractor” and receive protection under the worker’s comp statute. The plaintiff, with whom the Court of Appeals agreed, made the logical argument that Entergy couldn’t be a contractor because it was the owner of the property — Entergy couldn’t contract with itself to perform work. The plaintiff and the Court of Appeals cited existing Texas authority and such mainstream sources as CJS for the proposition that a general contractor is someone that contracts directly with the owner to perform work, not the owner itself.

It took the Texas Supreme Court a mere 13 paragraphs to dismiss the plaintiff’s arguments and his claims. Much of the opinion was based on the Court’s argument that the clear language of the statute demonstrates a clear legislative intent that an owner could be a contractor.

A motion for rehearing was filed, and with that motion, several groups have filed amicus curiae briefs. One of those briefs was a brief filed by four Texas legislators (two Republicans and two Democrats), who argued that it was never the legislature’s intent to allow immunity for landowners. The lawmakers wrote:

This Court, by disregarding the express terms of the Legislature’s enactments, has violated the separation of powers clause of the Texas Constitution and impermissibly encroached on the powers and functions expressly reserved the Legislature…

This Court’s holding in this case improperly extends that immunity to non-employer premises (plant) owners. The Legislature has never authorized such an extension, never intended to provide such an extension, and, in fact, has repeatedly rejected such an extension.

Of interest, one union has pointed out that if the Court’s opinion were in place in 2005, it would have prevented many of the injured workers from pursuing claims following the BP Texas City blast.

It should be interesting to watch how this plays out. I have no real faith that the Court will reverse the opinion, but maybe the amicus signals some hope that this problem will be fixed during the next legislative session. At a minimum, it’s another group criticizing the Texas Supreme Court for what has become a pattern of results-oriented opinions in the favor of big business and insurance companies.

Fort Worth personal injury lawyer John Cummings also has a post on this subject.