As lawyers who routinely represent clients who are seriously injured in car wrecks, we’re always interested in new traffic safety laws.  And for that information, today is a big day.  For many of the laws passed during the last legislative session, today (September 1) is the effective date — the date the law actually starts applying.  Here are some things to watch out for.

TOW TRUCKS:  In the last few years, drivers have been required to move over a lane or to reduce their speed to a speed at least 20 miles per hour below the applicable speed limit when passing an emergency vehicle  pulled over on the side of the road with its lights flashing.  As of today, that requirement now applies to tow trucks.  I don’t really have much of a problem with this law.  Tow truck drivers are exposed to danger, and this change in the law helps protect them and motorists passing them by.  A 20 mile per hour reduction is a little extreme, but the concept is sound.

SPEED LIMIT:  There are two big changes in the speed limit effective today.  First, speed limits will be the same during night and day and separate speed limits for trucks have been eliminated.  I’m not a big fan of this change.  As to the night/day difference, studies have shown that this distinction helps safety.  Eliminating this distinction will likely only increase the number of auto accidents.  As to the truck speed limits, truck drivers are a huge safety issue, especially for those of us who live along IH 35, one of the busiest truck driving routes in the country.  Again, I suspect changing that distinction will only lead to additional trucking accidents and more carnage.

The other big change to the speed limit is that speed limits on some state highways may be raised to 75 miles per hour if TXDOT finds the change safe after an engineering and traffic investigation.  This won’t immediately affect the speed limit on any Texas roadways, but the process for the change can start today.

HARDSHIP LICENSES:  Hardship licenses will be suspended if the holder is convicted of two or more moving violations during a 12 month period.  I’m generally okay with this depending on how it’s applied.  In many instances, a driver can receive a number of tickets for one traffic stop.  I’ve personally seen (not for me, but for family members) officers issue multiple tickets in hopes that one will stick.  If this type of abuse becomes more frequent and disqualifies drivers, I might have a problem with it.

Tuesday morning, the Austin Police Department conducted an unusual sting — one designed to catch drivers who disregard traffic signals at rail road crossings.

Sadly, Texas is at the top of the list for train wrecks, and the problem is increasing in Austin as the commuter trains move into downtown.  Last year there were 16 vehicle/train collisions and 10 pedestrian/train collisions. 

In the undercover sting, Police Chief Art Acevedo noted that two of the bigger problems were drivers trying to beat trains and pedestrians walking on tracks (often with music playing on headphones and blocking out sounds).

While many train collisions are caused by faulty motorists or pedestrians, a number of train wrecks are caused by the railroad companies.  These can be caused by improper maintenance, improper railroad equipment, unsafe railroard conditions, bad decisions by engineers, and more.  I can speak to this personally as my dad was once hit by a train when the crossing arms and signals weren’t working.  Thankfully, he was not seriously hurt in the incident.

You can watch a story from Fox 7 about the APD sting below.

APD Conducts Train Sting : MyFoxAUSTIN.com

A mediation is a settlement conference led by a neutral third-party, the mediator. The mediator is often, but not always, a lawyer.  In Texas, most courts require you to go through a mediation before you can get a trial in your case.

Generally, the mediation starts with an opening session where all the parties are present. In many cases, when the defendant has insurance, the defendant will not appear, but an insurance adjuster (who is really deciding the amounts to be offered) appears on the defendant’s behalf.

The mediator will start the opening session with his introductory remarks. Those remarks will describe the mediation process and will often include a discussion of some of the advantages of mediation. Depending on the mediator, the remarks may include statements similar to the following:

Mediation is your chance to have input on the resolution of the case without putting it into the hands of 12 (or 6) strangers.

A good settlement is one where both parties end up upset. That means the defendant paid more than it wanted, and the plaintiff accepted less than it wanted.

Don’t underestimate the emotional value of resolving the case. If you settle the case, then tomorrow can be the first morning in months (or years) that you wake up and don’t have to worry about this lawsuit.

After the mediator finishes his remarks, the parties will have an opportunity to make their statements. Generally, the plaintiff’s attorney will go first, and the defense lawyer second. Many times, these sessions become posturing sessions so, no matter what side you’re on, you will hear statements from the other side that will make you mad.  When the parties start posturing, it seems to push the parties further away from resolution than towards it.  Therefore, in our cases, we generally try to keep our remarks short and try not to make any unnecessary inflammatory remarks.  Additionally, in many cases, we request that the mediator not even have the opening session in an effort to prevent this problem from occurring.

After the parties have made their statements, then the mediator will separate the parties into different rooms. The mediator then goes back and forth between rooms and engages in shuttle diplomacy. The first few sessions may involve more in-depth discussions about the case. The mediator may ask you to evaluate your strengths & weaknesses. He may play a devil’s advocate to push and probe to make sure you’re fairly evaluating the case.

In the later sessions, there is less discussion, and the mediator is often just going back and forth trading offers.

The mediation ends when a settlement is reached or when the parties reach an impasse.

A mediation is not an arbitration. A mediator doesn’t have the authority to force parties to settle a case or to decide a case. All decisions about settlement are left up to the parties. Having said that, some mediators will provide suggestions on what a good settlement number should be, but those suggestions are not binding on the parties.

One of the benefits of mediation is its confidentiality. It’s generally confidential in two ways. First, what is said in mediation can’t be used at trial. For example, if you’re trying to resolve a case and make some concession, the other side can’t argue at trial that you conceded that point at mediation. Second, the communications you make to the mediator are confidential. The mediators should not go tell the other side anything you said unless you authorize the mediator to do so. The confidentiality isn’t 100%. There are some rarely-applicable exceptions, and some mediators don’t seem to treat their duty of confidentiality as seriously as others.

There are some rules we typically give our clients about mediation.

1. Bring something to read or do. A lot of the mediation will be spent with the mediator visiting with the other party. You will want something to do during this time or the time will pass slowly.
2. Dress in something comfortable, but appropriate. I generally suggest that you dress as you were going to work.
3. Be prepared to be tired. Mediation is an emotionally draining process. At the end of the day, you will be tired even though you will have spent the entire day just sitting around.

If you want additional resources to understand the process, you may read the following (but remember that their information isn’t specific to Texas so the processes described may be a little different):

• How Does The Mediation Process Work?
• Why Mediation Works
• Alabama State Bar:  What, How & Why of Mediation　

You settle your case.  What happens next?

It seems like I’ve been asked this question several times in the last week.  Because it’s popping up, I thought I’d use this space to answer the question.

Because we have to make payments out of the check  (for example, our fees & expenses, payments to health insurance companies for subrogation interests, or perhaps payments to doctors or hospitals for unpaid bills), you don’t get your check the day the settlement check comes in.  Instead, we have to go through a multi-step process.

The first step in the process is getting the check from the insurance company or the defendant.  This usually takes two to three weeks, though sometimes it is quicker and sometimes slower. 

The check is usually made out in one of two ways.  In most situations, the insurance company will make the settlement check out to you and to our firm.  In some instances, the insurance company will want to directly pay a health insurance company or a medical provider (usually a hospital).  In those cases, we’ll received two checks:  one to the hospital or health insurance company for the amount it’s owed and one to us and you for the balance.  There are also some situations where the company will agree to not put your name on the check to help us speed the process up, but that’s unusual.

When we get the check, if your name is on it, we’ll have to get your signature.  Usually, you’ll come into our office for this, but sometimes we can send a runner with the check out to meet you.

Once you sign the check and we sign the check, it is deposited in our trust account.  The State Bar of Texas requires us to keep a separate trust account to deposit funds that belong to both us and our clients (or even others). 

After we deposit the check, we give it a few days to clear, and then we can write checks for final distribution — that includes checks to you for your portion, checks to us for our portion, and checks to any third-party who need to be paid out of the proceeds. 

So what’s it all mean to you?  While the process can take a while to explain, it doesn’t usually take that long in practice.  Once we get the original settlement check, you can usually have a check for your portion of the proceeds in two to three business days. 

BUT, there are some circumstances where it takes longer.  Most of those involve us waiting around for Medicare or some other governmental entity on a subrogation claim.  If your case is going to be one of the unusual cases held up, we’ll try to let you know that as soon as possible.

Additional information is slowly being released about last week’s tragic bus crash near the San Marcos outlet malls.

As I originally predicted, it appears that the crash was caused by driver fatigue.  Police are now alleging that the driver, Jesus Basio-Ramirez, fell asleep while driving the bus. 

I am not surprised at all.  As I orginally wrote about the wreck, a majority of bus and trucking accidents are caused in part by driver fatigue.  Given the time of the wreck, there was little doubt in my mind that fatigue played a major part in the wreck. 

This is not the first problem for Mares, the company operating the charter.  The company has received a number of safety citations, including citations relating to driver fatigue issues.

The federal government places a number of limits on drivers designed to minimize fatigue risks, including requiring drivers to keep logs of their driving to show that their companies aren’t forcing them to drive excessive amounts.  Some of Mares’ previous violations are for having drivers drive longer than allowed by law and for not keeping accurate logs. 

These types of issues are not uncommon.  In investigations of bus and trucking accidents, it’s not unusual to find falsified logs or even drivers having two sets of logs so that they can drive more than allowed by law.

As I mentioned in my first post, all trucking and bus accident cases need to be properly investigated to determine if the company did anything to contribute to any fatigue issues.  This type of conduct alleged against Mares  — forcing drivers to drive excessive hours and not requiring drivers to keep accurate logs — is the type of conduct that is important to know and is typically the type of conduct that attorneys will miss if they treat these wrecks as big car accidents.

If you or a loved one is involved in a bus or trucking accident, please feel free to call us at (512)476-4944.

This morning, a Mares Tours charter bus bound for Dallas rolled over on Interstate 35 between New Braunfels and San Marcos near the San Marcos outlet malls.  Early indications are that all twenty-one people are injured, with three individuals suffering life-threatening head injuries. 

While the investigation is just beginning, reports suggest the bus left the roadway and overcorrected, causing it to roll and end up on its side.

Investigation of these types of wrecks and potential claims can be complicated.  Obviously, the injured passengers have a claim against the bus company for the driver’s negligence in over-correcting. 

But the biggest mistake I see lawyers make in commercial cases, such as bus accidents or trucking cases, is treating the case like a large car wreck case.  Simply doing that fails to maximize the value of the claim and is a disservice to the injured clients.

For example, in this case, it appears that the driver left the road and over-corrected.  But it’s important to delve into the questions about why he did that.  One likely factor is fatigue.  This wreck occurred around 4:00 a.m.  It is well known (as I’ve previously written) that one of the biggest factors in trucking accidents and bus wrecks is driver fatigue.   It will be important to determine whether driver fatigue was a factor and what, if anything, the bus company did to contribute to that problem.  Did it overschedule the driver?  Did it deny the driver necessary brakes?  Did it schedule a driver that it knew might have a propensity for fatigue? 

If the driver wasn’t fatigued, was he distracted in some other manner?  Truck drivers and bus drivers, like other drivers, have a history of being distracted by texting while driving.   Additionally, many buses and trucks today are equipped with so many ”gadgets” that the gadgets are themselves a distraction.   A proper investigation will look at what distractions might have contributed to the driver going off the road.

Another question will be asked about why the driver over-corrected.  Was the driver inexperienced?  Did the company fail to provide enough training for the driver?  Did the driver have a history of driving issues?

These are the types of questions that need to be answered about the company’s conduct.

Additionally, there may be a potential claim against the trucking company and perhaps even the manufacturer of the bus for not having adequate safety equipment.  For example, electronic stability control is an important feature that is used in many buses in foreign countries, but is not as prevalent here in the United States.  Electronic Stability Control (ESC)  is an electronic system that is designed to minimize the risk of roll-over accidents exactly like the one here.  Did this bus have electronic stability control?  If not, the injured victims may have additional claims against the bus company and the manufacturer for not including ESC on this particular bus.

Whatever the root causes, a key in this case will be for the victims to retain a lawyer as soon as possible to start this investigation.   You can rest assured that the bus company and its insurance company are already on the scene documenting evidence.  The longer the injured persons delay in investigating the claim, the bigger advantage the bus company will get. 

Stories about the wreck are below.  I will try and update them as time goes by.

• Bus Crash Shuts Down I-35 Lanes
• Early Morning Bus Crash In San Marcos Leaves 21 Injured
• Three Victims Flown To University Hospital After San Marcos Bus Crash
• 21 Injured In San Marcos Bus Wreck

21 injured in San Marcos bus wreck: kxan.com

You can contact us about bus accidents and trucking accidents  by calling us at (512)476-4944.

I try not to talk too much about politics here, but the I do have an exception for tort reform issues and safety issues.  Last Friday, Governor Perry made what I think is a dangerous decision on a safety issue.

One of the good things to come out of this legislative session was HB 242, which imposed a state-wide ban on texting while driving, among other things.  This was a huge step in making the roadways safer for all Texas motorists.  It also received bi-partisan support in both the House and the Senate, where it passed almost unanimously.

Unfortunately, last Friday, Governor Perry vetoed the texting-while driving bill.

What almost offends me more than the veto is Perry’s “reasoning” for the veto.  In vetoing, he stated that the bill was an “overreach” that attempts to “micromanage the behavior of adults.”   He then added that a more appropriate measure may be more education of drivers. 

Really?

Is the speed limit an overreach?  Or laws against driving while intoxicated?  Because study after study finds that texting while driving is more dangerous than both.  From the cases we see on a regular basis, texting while driving is perhaps the biggest roadway danger out there.  And with Governor Perry’s assistance, the state refuses to do much about it.

I’m also upset about his suggestion that education might be the answer.  That’ obviously wrong.  People know about the dangers of texting while driving, but they do it anyway.  And more importantly, as far as I can tell, Governor Perry hasn’t proposed any new education effort to help spread the dangers of texting while driving.  He’s not even helping push what he claims is the solution to the problem.

I thought I might be in the minority on my view because I see the dangers of texting while driving on a daily basis, but I was happy to see that a West Texas news station found that even typically conservative West Texans disagreed with the veto.  KWES News9 has a great article/story with reactions from their part of the state, and I urge you to read their article.  

So for now, politics again gets in the way of safety.  While the texting while driving ban wouldn’t prevent all people from texting while driving, but it would have helped.  But for now, the carnage continues.

Recently, the National Transportation Safety Board convened a two day meeting of federal regulators, safety experts, and the truck and bus industries to try and tackle the often deadly problem of trucking accidents and bus wrecks.  The conference was to examine what is being done to prevent deadly accidents and why past safety recommendations haven’t been enacted.  Some of these recommendations have been pending for decades, including a 1968 recommendation that buses come with seat belts, which wasn’t enacted until last year.

Ironically, the number of fatal trucking accidents has decreased slightly in the last few years, but most experts attribute that to fewer trucks and buses being on the road in the weakened economy.  Experts fear that as the economy recovers, the number of trucking wreck and bus accident fatalities will climb.

One of the most important areas sought to be improved by the Obama Administration is the area of driver fatigue.  As much as one-third of all commercial motor vehicle crashes are due to fatigue according to the NTSB.  There are already limits on the number of hours that truckers and bus drivers can drive, but the Obama Administration is seeking to decrease those hours a little more. 

But the limits on hours driven is meaningless if it can’t be enforced.  Currently, drivers are required to maintain log books that set out their hours behind the wheel.  Unfortunately, we’ve seen too many cases where those log books were fudged or the driver maintained two sets of log books to allow them to “beat” the regulation.  Another proposal from the Obama Administration would require equipping buses and trucks with devices that would record how many hours drivers were behind the wheel. 

The Administration also wants trucks and buses to have some of the same safety technology that buses and trucks use in other countries.  For example, buses and trucks could have electronic stability control (which helps prevent rollovers), warning systems to alert drivers they’re drifting in lanes, and warning systems that alert drivers to impending collisions.

It’s too early to know what will come of the summit, but we hope improvements are made.

In short, everything you think is relevant, and probably more.  I always tell clients that we would much rather have too much information than not enough.    While each type of case is different, there are some general things that you should consider bringing to your initial attorney consultation.

1.  ACCIDENT REPORT.  In many types of accidents, you might already have access to accident reports about your case.  For example, if you’re in a car wreck, you should bring the police report.  If you have an on-the-job injury, you should bring any investigation report performed by your company.  If you’re injured on the premises of a business, you were likely required to fill out an incident report.  You should bring any type of reports like these to your initial meeting.

2.  PHOTOS/VIDEOS.  If you have photos or video of the accident scene, the other parties, or your injuries, then bring those in.  Photos can be priceless in helping tell your story.

3.  A LIST OF DOCTORS/MEDICAL PROVIDERS.  Prior to your consultation, you should prepare a list of doctors and medical providers who you have seen for the wreck  We’re going to ask you for that in the meeting.  Instead of you being put on the spot and trying to think of those items off the top of your head, try to prepare the list in advance.  I’ve found that clients who prepare the list in advance  (without  the stress or being rushed) do a much better job of naming everyone that needs to be on the list.

4.  MEDICAL RECORDS AND BILLS.  If you have any medical records or bills, bring those to the initial meeting. 

5.  YOUR HEALTH INSURANCE POLICY/MEDICARE or MEDICAID INFORMATION.  It might not occur to you, but it helps to have your health insurance policy.  Because of subrogation principles, your health insurance is probably going to be asked to be reimbursed for any medical expenses it pays on your behalf.  The same is true for Medicare, Medicaid,  VA Benefits and any number of other groups that pay for your medical care.  To help us prepare for your subrogation claims, please gather your health insurnce policy, Medicare or Medicaid records, or any additional information that you think might help us pursue those subrogation claims.

6.  FOR CAR WRECK CASES, YOUR AUTOMOBILE INSURANCE.  Again, you might not think about this, but if you are retaining us to represent you in a car wreck, please bring your automobile insurance policy.  We’ll need that policy to help you determine whether you have Personal Injury Protection (PIP) or Uninsured/Underinsured Motorist Coverage (UM/UIM).

7.  CORRESPONDENCE WITH THE INSURANCE COMPANY/DEFENDANT.  If you have already started receiving communication from the insurance company or the other side, we’ll want to know about that.  Please bring that information to the first meeting.

There will, of course, be additional documents that you need.  Use your discretion.  If you think there is any chance that we’ll need the information, then bring it.

In terms of spectacular accidents, this one would be right up there. It involved two school buses and a big rig.

It was a relatively ordinary day, and the school kids on the two buses were coming back from a function they had attended at a local university. The 60 students and their two teachers did not see the accident coming, as it happened without warning.

An 18-wheeler seemingly appeared out of nowhere and sideswiped the first bus, then rammed head-on into the second bus. The debris was all over the highway and EMS crews struggled to get at least 17 students to area hospitals any way they could. Fortunately, at first blush, the students’ injuries didn’t seem to be too serious, but time would tell. Unfortunately, the two teachers and the trucker were killed on impact.

The police reports indicated that they did not know what happened to cause the semi to crash into the two school buses, but they are investigating more to find answers. They want to check the driver’s log books, the on-board computer, whether or not his cell phone was in use at the time of the accident and whether or not he was driving under the influence of drugs or alcohol.

While this particular accident is unique to its locale and in its circumstances, all across the nation, similar accidents happen nearly every day. When a big rig goes out of control, the results are never pretty. Often they are fatal and if by some miracle they are not, the injuries sustained by the victims are so catastrophic that they will never again been the same people they were prior to the accident.

Anyone who has survived a big rig collision and walked away to tell the tale is uncommonly lucky from the standpoint of being alive. Others feel they would rather have died in the crash than to live they way the have to live now because of their debilitating injuries. This is where a skilled and compassionate Austin personal injury lawyer is needed to pick up the pieces and move forward to court and to justice.

Severely injured victims need the skills an Austin personal injury lawyer brings to the table to help them secure a high enough damage award to be able to pay for their ongoing medical care for the rest of their lives. By the time they get to court, they will have also racked up hundreds of thousands of dollars in medical bills, therapy, medications, etc. Very simply, they need the jury verdict to help pay for the financial carnage their lives are in, as a result of their accident.

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