Perlmutter & Schuelke, LLP » Wrongful Death

Present Value Calculation for Death Compensation

jferris — Thu, 24 Jun 2010 21:19:10 +0000

One of the most confusing things about wrongful death compensation is how it is calculated.

It’s hard enough to handle the fact that you suddenly lost a loved one due to the negligence of another, let alone understand how to calculate wrongful death compensation. These cases definitely need the skill of an experienced Austin personal injury lawyer to navigate the choppy waters surrounding death calculations and how an award is translated to present day dollars.

Texas wrongful death claims are unusual. When a person is wrongfully killed, the claims are governed by the Texas Wrongful Death and Survival statute. This statute describes who can sue in a death claim and what damages they may recover.

When a person is wrongfully killed, the person’s estate has a “survival claim.” The estate has the right to seek damages for any medical or funeral expenses that the person incurred as a result of the incident, plus claims for any pain and mental anguish the deceased might have experienced before his or her death.

The statute also allows some family members to make a “wrongful death” claim. In Texas, the only people that can make a wrongful death claim are the deceased’s spouse, children and parents. The spouse and children get to ask for damages of pecuniary loss (loss of care, maintenance, support, services and advice that the person would have provided), loss of companionship, mental anguish, and loss of inheritance. Surviving parents may also seek these damages, except the loss of inheritance damages.

Needless to say, it can be extremely confusing and complicated.

Loss of inheritance is based on the lost income of the person killed. Future lost income is usually figured out based on the amount of income a victim would have earned had they not been killed. This may be calculated by taking the deceased’s income when they died and then multiplying it by the years left until retirement (and finding a formula to compensate for increases in income the person would have received) or until their expected death. As you may have already guessed, retirement ages differ from one person to the next and when a person dies is based on complicated actuarial tables.

An example of how this would work would be a 50-year-old man making $40,000 a year when he was killed and was not banking on retiring for another 15 years. That individual’s income, when he was killed, would be multiplied by the number of years he had left to work. That would be $40,000 x 15 years which would make his future losses of $600,000 (give or take).

The fly in the ointment is accounting for raises the person would have received and reducing the overall value to present day dollars because Texas law requires awards of future income to be “discounted” to present value. In many cases, one of the biggest fights is the fight among each side’s economists arguing about the way these two calculations should be done.

Something to remember is that wrongful death compensation figures are not always calculated the same way simply because of the presence or absence of various factors may be different in each case. The only way to get a good idea of what compensation may be in a wrongful death case is to discuss the matter with an Austin personal injury lawyer. They would be able to outline how the process works and what you could expect to see during the course of the trial.

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

Personal Injury Victims, How Far Will Insurance Adjusters Go To Investigate Your Claim?

brooks — Wed, 09 Jun 2010 13:21:31 +0000

I was having a talk with a fellow personal injury lawyer the other day, and he was griping about the result of a mediation. This was a small car wreck case, and the insurance adjuster dropped the “bombshell” during the mediation that she discovered that the plaintiff had run a 5k race after the car wreck. And not only had the plaintiff run the wreck, but the plaintiff posted a faster time after the wreck than he did the year before.

There are two things to learn from the story. First, if you’re involved in a wreck or accident, the other side will investigate you. In this day and age of the internet, it’s really cheap and easy for defense lawyers or insurance adjusters to spend a little time and find out a lot of information about your life. If you have skeletons in the closet, they’ll find them, even in small cases.

The more important lesson is to be honest with your lawyer. When we were remodeling our house, our builder used to say, “there are no problems, only issues.” If a client tells his lawyer something bad, the lawyer can usually deal with it. But when the client doesn’t tell the truth or fails to include something in the hopes that no one will ever find it, that often becomes a problem. These types of problems ruin cases. So if you’re injured, learn from others’ mistakes and tell your attorney the truth.

Not being honest with your attorney is only one of many mistake you can make that can ruing your case. If you or a loved one has been injured in a wreck, on-the-job injury, or otherwise injured by someone else, request a copy of our book, HOLDING WRONGDOERS ACCOUNTABLE: Avoiding Mistakes That Can Ruin Your Texas Accident Claim. I think you’ll be glad you did.

Injured? When Do You Need To Talk To A Personal Injury Lawyer?

brooks — Wed, 26 May 2010 21:43:38 +0000

I often have the misfortune of telling potential clients that I can’t help them because they didn’t come to us soon enough. Clients often think they’re doing great to call us several months before a statute of limitations runs.

But that’s not always enough notice. A number of cases require immediate attention. For example, in a premises liability case, for best results, we need to be able to inspect the scene as close to the date of the accident as possible. When conditions change, it’s hard, if not impossible, to go back and recreate who was at fault. Sometimes clients can take photos and document the scene so that we do those types of investigations, but it’s safer to get the expert and attorneys out there before any changes are made.

And don’t get me started with trucking cases. In a serious trucking case, the trucking company will have its experts at the scene, inspecting vehicles, etc within a few hours. That’s a huge advantage. An injured person obviously won’t be able to timely research a trucking case unless they hire an attorney early.

Even in some of the most basic car wreck cases, early investigation can be important. Police officers investigate hundreds of accidents per year. You don’t need to talk to them in every case, but when you do, you need to talk to them early so they remember the wreck you were in.

So that’s the answer. Talk to a personal injury lawyer early. Once you miss the time to do investigation, you can’t get that back.

Waiting too long to contact an attorney is only one of many mistakes that accident victims make that can hurt their claims. If you’ve been injured in a Texas accident and you want to avoid those mistakes, order our free book HOLDING WRONGDOERS ACCOUNTABLE: Avoiding Mistakes That Can Ruin Your Texas Accident Claim. We’re on a mission to make sure that insurance companies and other lawyers don’t take advantage of accident victims, and a lot of the advice in the book is designed to prevent that from happening.

Construction Zone Accidents Remain A Problem

brooks — Wed, 12 May 2010 12:31:02 +0000

A road construction worker died in a Tuesday afternoon construction zone accident in Lockhart (my hometown — in fact, you’ll pass a large Schuelke Road sign as you drive down 183 from Austin to Lockhart). It appears that the worker was killed when a construction vehicle backed over him.

These types of events are tragic, but they’re not much of a surprise. Work zones are routinely one of the most dangerous parts of the road for both motorists and for the workers. However, this wreck was unusual in two respects. Generally, the more dangerous construction zones are those on highways. Though details are sketchy, this wreck appears to have occurred on a residential street (though one of the busiest streets in town).

Also, work zone injuries to road workers are usually the result of unsafe motorists — not from other road workers. Protections and protocols should be in place to protect workers from one another. Sadly, those protections must have been absent or improperly used in this case.

I will try to update this post or provide other posts as more develops. In the meantime, if you’re interested in this topic, you can see my prior posts on work zone accidents:

Why Should A Bad Driver, A Dangerous Doctor, Or An Unsafe Employer Get A Benefit From Your Health Insurance?

brooks — Tue, 11 May 2010 20:08:30 +0000

A recent Ohio Supreme Court decision allows defendants in personal injury cases to introduce evidence that the plaintiff’s medical providers “wrote off” charges for the plaintiff’s care. Most health insurance companies have agreements with medical providers that the medical providers will accept a reduced amount as payment in full for procedures. For example, in the Ohio case, the plaintiff was billed $21,874.80 for care. This is the amount that the provider would have charged a patient without insurance. However, because of the insurance contract between the patient and the provider, the insurance company paid $7,483.91 and wrote off the rest.

The Ohio trial judge said only allowed evidence of the full $21,874.80 in charges, but the Ohio Supreme Court said that the evidence of the write off should have been admitted. The opinion is here.

A number of other states have held the opposite. How do we deal with it in Texas? Frankly, no one is sure.

Historically, Texas has not allowed in evidence of the write offs. But in the 2003 legislative session, the legislature adopted a rule that reads:

In addition to any other limitation under law, recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant.

What does that mean? Without defining “paid” or “incurred” the statute is a model of poor draftsmanship. Despite the statute being around for seven years now, courts still haven’t come to a good conclusion of what it means. I can tell you that in most Travis County courts the judges aren’t allowing in evidence of the write off, but they will reduce the jury’s award for medical expenses after the verdict is rendered to equal the amount that was actually paid, including insurance payments, co-pays, etc.

The result of this is that in two hypothetical cases — one where a driver runs over an employed person with insurance and one where a driver runs over the same employed person without insurance — there will be two very different results due to the existence of health insurance.

But all of this begs the question, “Why should a bad driver, a dangerous doctor, or an unsafe employer get a benefit from your health insurance?”

When there are write offs, there are two possible outcomes. First, the plaintiff could be awarded the full amount of the medical charges even though some are never paid due to the reduction. This would be a benefit to the plaintiff. Second, the plaintiff could be awarded the reduced amount, which would mean the defendant gets a benefit from the health insurance reduction.

So we’re faced with deciding which of two sides gets a benefit: the side that purchased health insurance or had an employer purchase health insurance or the side that committed the wrong that resulted in the suit. If you’re choosing between the two, why should the wrongdoer get the benefit of the insurance? I’ve had a discussion about this law with a number of different people, and I’ve yet to hear any good reasons why benefits of health insurance should not go to the innocent party, but should instead go to the wrongdoer. If you have suggestions, let me know.

And a h/t to Nashville, Tennessee injury lawyer John Day & his blog Day on Torts for the link to the opinion.

Car Wrecks Are The Leading Cause Of Teen Deaths

brooks — Thu, 06 May 2010 12:38:27 +0000

The Centers For Disease Control has released a new study confirming that car wrecks are the leading cause of death among US teens. Every year in the United States, over 16,000 teens between the ages of 12 and 19 die. Nearly 50 percent die in accidents, with car wrecks accounting for nearly one-third of the deaths. In addition to the deaths, the CDC estimates that about 350,000 teens are treated in emergency rooms each year for injuries sustained in auto accidents.

Why are teens at such risk? Also from the CDC:

Teens are more likely than older drivers to underestimate dangerous situations or not be able to recognize hazardous situations.

Teens are more likely than older drivers to speed and allow shorter headways (the distance from the front of one vehicle to the front of the next). The presence of male teenage passengers increases the likelihood of this risky driving behavior.

Among male drivers between 15 and 20 years of age who were involved in fatal crashes in 2005, 37% were speeding at the time of the crash and 26% had been drinking.

Compared with other age groups, teens have the lowest rate of seat belt use. In 2005, 10% of high school students reported they rarely or never wear seat belts when riding with someone else.

Male high school students (12.5%) were more likely than female students (7.8%) to rarely or never wear seat belts.

African-American students (12%) and Hispanic students (13%) were more likely than white students (10.1%) to rarely or never wear seat belts.

At all levels of blood alcohol concentration (BAC), the risk of involvement in a motor vehicle crash is greater for teens than for older drivers.

In 2008, 25% of drivers ages 15 to 20 who died in motor vehicle crashes had a BAC of 0.08 g/dl or higher.

In a national survey conducted in 2007, nearly three out of ten teens reported that, within the previous month, they had ridden with a driver who had been drinking alcohol. One in ten reported having driven after drinking alcohol within the same one-month period.

In 2008, nearly three out of every four teen drivers killed in motor vehicle crashes after drinking and driving were not wearing a seat belt.

In 2008, half of teen deaths from motor vehicle crashes occurred between 3 p.m. and midnight and 56% occurred on Friday, Saturday, or Sunday.

Interestingly, the CDC found that the one thing that can make a difference is parents. Surprisingly (for those of us who have kids), when asked about whose opinion they most listen to and respect, most teens responded with their parents. Parents have to properly instruct teen drivers on their boundaries and continuously reinforce the dangers of driving and safe driving habits.

If you have a teen, make sure you’re doing what you can to protect his or her life.

Oprah Takes On Distracted Driving

brooks — Wed, 05 May 2010 13:03:42 +0000

It’s no secret that we’ve advocated for people to be more careful about driving and texting. Some of our prior posts on this include:

But now, someone with a little more reach is taking on this topic. Oprah is engaging in a concerted effort to inform people about the dangers of distracted driving, in particular, the dangers of texting while driving and using cell phones while driving.

On Sunday, April 25, 2010, she published an editorial in the New York Times: Dnt Txt N Drv. In the editorial, she notes that when she started reporting in 1973, a drunk driving death was big news. But as the number of drunk driving deaths increased, the stories became less and less newsworthy until the country finally figured it out.

The same thing is happening with deaths from texting while driving. While the first deaths were newsworthy, the numbers continue to pile up, and the stories of deaths from texting while driving seem to no longer command the news attention the way they once did. Hopefully, the nation is at a tipping point where we finally “get it” about this issue too. As Oprah says, there are a lot of natural disasters that we have no control over. But this is someting we can control, and we should strive to end these deaths.

Following her editorial, Oprah hosted “No Phone Zone Day” on her show on April 30. The show featured live rallies across the country and asked viewers to pledge to make their cars No Phone Zones. She is also launching a line of No Phone Zone products and donating all porceeds to FocusDriven, an advocacy group for victims of motor vehicle crashes involving drivers using cell phones.

Please heed Oprah’s warning and make the roads safer for all of us.

Learn From A Tragic Golf Cart Wreck

brooks — Tue, 04 May 2010 19:57:11 +0000

Over the weekend, Alyssa Bargsley, a student at Hays High School (my alma mater), was killed in a tragic golf cart wreck. Apparently, Ms. Bargsley was standing on the back of the golf cart while the driver, another Hays High School student, was driving. The driver hit a bump, tossing Ms. Bargsley off the cart and causing her to hit her head on the pavement.

Sadly, Ms. Bargsley isn’t alone. A 2008 study by the University of Alabama-Birmingham Center for Injury Sciences found that around 1,000 Americans per month were experiencing significant injuries (enough to warrant a trip to the hospital) from golf cart accidents. About half of these injuries were found to occur on golf courses, but about half occurred on streets or other public property (as was the case with Ms. Bargsley’s wreck).

Having grown up playing golf, I can certainly understand how these accidents occur, particularly when teenagers are involved. But it’s really important to remember that these are vehicles that travel at decent speeds, and use of golf carts can lead to serious injuries.

The Texas Department of Insurance has a Golf Cart Safety FactSheet that has a number of safety tips for the operation of golf carts. Among the tips:

Drivers and passengers must remain seated while the vehicle is moving.
Never exceed the number of available seats for the number of passengers.
A golf cart should be operated at a speed equivalent to a well-paced walk, but no faster than 15 mph.
All passengers should keep hands, arms, legs and feet within the confines of the golf cart at all times when the cart is in motion.
All golf carts should have seat belts, and the operator and all passengers should be restrained.
Reduce speed when approaching pedestrians.
When driving, maintain adequate distance between vehicles.

This is an unspeakable tragedy, but it would be even worse if others failed to learn from it. The next time you or your kids are on a golf cart, please remind them of these tips to help protect all involved.

What Is A Wrongful Death Claim Worth?

brooks — Thu, 29 Apr 2010 12:00:32 +0000

Earlier this week, I wrote a post asking “What Is The Typical Personal Injury Settlement When Someone Gets Hurt?” In the post, my basic conclusion is that there is no “typical settlement.” Each personal injury case has its own unique facts and must be evaluated on its own merits. If a lawyer tells you he knows the value of your case without talking to you about specifics or without investigating a number of factors of the case, then the lawyer is doing you a disservice.

At about the same time I was writing that post, Ron Miller, a Maryland personal injury lawyer, was writing a post titled “Wrongful Death Compensation: How Much?” In the post, Ron looks at an academic article that tries to create a more uniform system for awarding wrongful death damages. And Ron’s response was very similar to mine. It’s hard to have a uniform system because “facts vary wildly from case to case.” Each case is different, and awards (or values clients put on elements of awards) differ from person to person.

For example, two personal injury victims may say they like to scuba dive and they can’t do it any longer. However, one client has been scuba diving a couple of times while the other is willing to spend $5,000 twice a year on scuba diving trips. The value of being unable to dive probably means a lot more to the second than the first.

All elements of damages vary this way, and it’s just impossible to put a uniform number or value on a claim or to estimate what a claim’s worth without knowing most of the facts of the case.

Are The Risks Of A High Speed Police Chase Acceptable?

brooks — Wed, 28 Apr 2010 18:57:35 +0000

Earlier this week, Eliot Alfred Carvajal, was allegedly driving drunk and led Austin Police Department officers on a police chase (with speeds exceeding 100 miles per hour) that started in North Austin on I35 and ended in a fatal collision in South Austin near Brodie Lane. As the car neared Brodie, Carvajal lost control of the vehicle and wrecked. One unindentified passenger in the car was killed, and two others were seriously injured.

Earlier this month, a Fayette County police chase also ended in a fatality when the driver of the car apparently shot himself while driving.

While neither of these resulted in collateral damage — injury to those uninvolved in the chase — they do raise the question about whether these type of risks are acceptable. Do we want innocent people — kids, soccer moms, teachers, etc — put at risk by law enforcement officials engaging in high speed chases? For example, last September, an innocent Austinite was killed in a police chase after the SUV the police were chasing hit him head on. Later that month, an innocent pedestrian was seriously injured following another chase.

Sadly, Austin isn’t unique. Ironically, USA Today ran a feature story just a few days ago detailing the risk of high-speed chase policies. Their study found that one-third of those killed in high speed police chases are innocent bystanders, and those numbers may be underreported because there is no mandatory reporting system for deaths in pursuit cases. As a result of these injuries, police departments and governmental agencies across the country are looking at modifying policies relating to police chases.

But where does that leave us? Do we continue to have a number of Central Texas high-speed chases? Do we ask law enforcement to consider using safer alternatives? Do we draw the line and say “no high speed chases”? Or do we say, “we’re Texas, and we’re catching the criminal regardless of the cost?”

Only time will tell.