Far too few personal injury lawyers are aware that if you (or perhaps more importantly, your children and other family members) are injured by an uninsured or underinsured driver while riding your bicycle or walking  (or doing most anything else), then you can probably make a claim against your UM/UIM coverage.  

When looking at your own policy  (where you are the named insured), the focus is not on what you were doing, but whether you were hit by an uninsured/underinsured motorist.  One of the best quotes about this comes from the case of Greene v. Great American Insurance Company, a 1974 opinion from the Beaumont Court of Appeals:

There is no requirement that the insured have any relation, at the time of the accident, with any vehicle he owns and that is insured with the insurer.  The uninsured motorists protection covers the insured and the family members while riding in uninsured vehicles, while riding in commercial vehicles, while pedestrians, or while rocking on the front porch.

I want to add two clarifications about this.  First, this analysis only applies to your own UM/UIM insurance.  If you’re looking to make a recovery on UM/UIM insurance bought by someone else — for example, your employer, someone whose car you’re in, etc. — then this analysis doesn’t apply.

Second, the potential coverage isn’t quite as broad as the case above indicates.  Because of exclusions, there might be some very specific situations where coverage doesn’t apply.  Because policies are so different, you’ll have to look to your policy.

But those specific exclusions don’t change the general answer that, “Yes, your uninsured/underinsured motorist coverrage will cover injuries to you while you’re biking or walking” or rocking on the front porch.

There was a sad car wreck in New Braunfels this week that led to this post.  Two older women were driving on I35 in New Braunfels near Rueckle Road when their car was cut off by a red sedan.  The driver swerved to avoid the red sedan, and eventually ended up having a wreck.  The two older women were both airlifted to University Hospital in San Antonio. 

What type of claims might the women have for the injuries sustained in the car wreck?

If they can find the driver of the red sedan, the two women would obviously have a claim against that driver. 

But if the other driver can’t be found, then the women may have a claim against any uninsured/underinsured motorist coverage that they have, but things are very tricky.  Generally, uninsured/underinsured motorist coverage, which you can purchase when you buy car insurance, will cover you in a hit-and-run accident.  But “hit” is the operative word here.  If the red sedan hit the women’s vehicle then they would be able to make a claim.

However, Texas has a contact requirement.  If the red car didn’t come in contact with the women’s vehicle, then they likely don’t have a claim on the uninsured/underinsured policy.  This exclusion is complicated and is the subject of a lot of caselaw.  Unfortunately, it’s also caused a lot of heartache for a lot of clients who don’t get to assert claims that cause them real injuries.

Kudos to public safety officials in Massachusetts for their hard work in reducing trucking accidents.

Three of the biggest safety hazards presented by the trucking industry are (1) too heavy of loads — which makes it more difficult to safely control the trucks; (2) improperly maintained vehicles; and (3) truckers driving beyond the allowed number of hours.

Police officers have long known that face inherent problems in trying to remedy these issues.

A story in yesterday’s Boston Globe talked about the problems and some of the measures that Massachusetts is taking to improve safety.

When talking about the problem, the story noted:

When a station is operating — we’ve all seen those illuminated open and closed signs — vehicles that meet the criteria must pull over or face a $500 fine. Theoretically, police just open shop and let violators come to them.

In reality, it doesn’t work that way. The moment a weigh station opens, truckers are on their CB radios spreading the news. Drivers with no alternative may pull over until the “closed’’ sign lights up. A company might even delay shipments to avoid inspections.

“It becomes a game of cat and mouse,’’ says Sergeant Peter Littlefield, head of truck enforcement at the State Police barracks in Concord. “A lot of the guys you get are the good guys. The bad guys go around you.’’

The story also pointed out:

Federal law prohibits truckers from driving more than 11 straight hours, but drivers frequently lie about shifts in order to make more money, police say.

But Massachusetts is fighting back.  Instead of the standard weigh stations, the state police have started using portable weigh stations that they can set up at known problem areas or at random points along the road.  And when they do it, they take the enforcement seriously.

The program seems to be working.  The number of fatal trucking accidents has decreased by 20 percent in recent years so that Massachusetts now has the lowest fatality rate in the country for accidents involving commercial vehicles.

Maybe we could use a little of that program in Texas?

Both KXAN and Fox7 reported last night on a collision between a Capital Metro driver and a pedestrian.   The story caught my attention because I’ve been on both ends of that.  I’ve represented a number of people, including one pedestrian, that have been hurt in wrecks with Capital Metro.  And I’ve also had the pleasure of representing a number of Capital Metro drivers, and I know that it’s a hard job.

But watching the KXAN story last night, one thing in particular struck me.  As the original story was going, the news camers showed a Capital Metro employee out there taking photos of the bus and the scene.  (Unfortunately, the story on the website doesn’t show the entire story so you won’t see this if you’re watching the link.) 

In our book HOLDING WRONGDOERS ACCOUNTABLE: AVOIDING MISTAKES THAT CAN RUIN YOUR TEXAS ACCIDENT CLAIM, one of the mistakes we talk about is not documenting the scene.  Many times when you’re in a wreck, you’re too hurt to do anything.  But in some instances, you’re able to take our your camera or cell phone and snap a few pictures of  the cars, skid marks,  debris, people standing around, etc.  This time of information will almost always help in some way or another as the case proceeds. 

This type of investigation is especially important when you’re involved in a wreck with a commercial vehicle, such as a bus or an 18-wheeler.  They will have investigators out on the scene as soon as they can.  And if they’re the only ones that get to document what’s going on, then it’s a huge advantage for them.  

Documenting the scene is also one of the most important reasons why you should talk to an attorney sooner rather than later.  If an attorney is hired early, we might be able to get an investigator out there that can find some skid marks, left over debris, etc.  that won’t be there as time passes.  It’s also sometimes easier to get witnesses to cooperate if we can talk to them shortly after a wreck instead of waiting until months or years later.

UPDATE:

After I finished the post, Steve Lombardi, writing in The Verdict, provided additional insight to his clients involved in accidents and stressed how preserving the evidence at accidents whith photographs is equally vital and important to being able to win your case.  In Why Is The Bus Company Photographing The Bus At The Accident?  Steve adds to the idea that car-truck-bus-motorcycle accident investigations require you to have your own independent investigation to preserve evidence for you.  We’ve been doing that at Perlmutter & Schuelke, LLP  for years.  And now that it’s easier to make digital presentations to the adjuster, through a demand or at mediation, having that type of evidence in disputed cases is more critical than ever.

After yesterday’s post, my friend Steve Lombardi, a Des Moines personal injury lawyer, sent me links to a number of posts on his blog dealing with wrong way drivers.  If you’re interested in the problem, check out some of Steve’s links:

• Wrong Way Collisions in Iowa
• Wrong Way Driving On The Interstate Highway Systems
• Wrong Way Drivers Distracted and Misled By GPS
• What Are The Causes Of Wrong Way Drivers (a/k/a Ghost Drivers)?
• Wrong Way Drivers Collide in Texas
• Driver Safety: Wrong-side Driver Round Up
• Wrong Way Drivers on I-80, I-285 and I-35.  What Can You Do?

As you can tell, this is something that is near and dear to Steve’s heart, and his posts have a lot of good information in them.

There are some things that just seem like they shouldn’t happen:  doctors performing surgery on the wrong body parts, tires coming off of 18 wheelers or other cars and causing wrecks, and wrecks caused by people driving the wrong way on highways.  And yet all of them occur over and over.

Sadly, this weekend was marred by another wrong-way driving death in Austin.   Early Sunday morning, Round Rock driver Michael Mattioli managed to get on the 45 Toll Road the wrong way and collided head on with a car carrying Anthony Thomas and Garvin Campbell, two people much too young to have died.

This is only the latest in a nation-wide problem of people driving the wrong way on major highways.  Perhaps the most famous deadly stretch in the country is the Dallas North Tollway, which has seen a number of traffic fatalities from wrong way drivers, but these problems occur all over the country.  Some estimates suggest that 3% of the traffic fatalities in the U.S. are caused by wrong way drivers.

The Texas Transportation Institute at Texas A&M has been one of the leaders in investigating these wrecks.  What have they found? 

• The most frequent origin of wrong-way incidents is the freeway exit ramp (i.e., a driver travels the opposite direction on an exit ramp onto the freeway main lanes)
• Crashes tend to be more severe and have a greater proportion resulting in death or serious injury than most other crash types on freeway facilities
• Elderly drivers are over-represented compared to their proportion of the driving population and their proportion of involvement in other crashes
• Male drivers are significantly more likely to be involved than female drivers
• Between 50 and 75 percent involve an impaired wrong-way driver who had been drinking or was under the influence of alchohol or drugs
• Crashes are more prevalent during non-dayling hours, particularly early in the morning

Unfortunately, there  isn’t an easy solution for these problems.   Modification of roadways and signage are often expensive, and there is little that drivers can do to protect themselves. 

For more information on these issues you can read:

• Wrong-Way Driving in Texas: Problems, Issues and Countermeasures
• Car Wrecks Caused By Wrong Way Drivers Are Causing Too Many Fatalities
• Wrong-Way Drivers Collide In Texas
• Driver Safety: Wrong- Way Driver RoundUp

There will be few stories bigger in the next couple of week’s than Capital Metro’s MetroRail finally opening on March 22.  The addition of a rail line brings the promise of changing the face of Austin transportation forever.

But it also brings risks.  Historically, additional of rail to roadways brings an increase in car wrecks.  This is particularly true in the first few months following the opening of the rail as commuters get used to stopping at the train tracks for the trains.  But those risks will continue.  Yesterday’s   Houston collision between a Houston Metro bus and one of Houston’s light rail trains is a sobering reminder of just how tragic these collisions may be. 

So as you’re driving the streets the next few weeks, be mindful of the new rail system.  You might consider these tips (from Capital Metro and sent home to AISD students):

• Remember that the trains are traveling as fast as a car and are quiet.
• NEVER stop a car on the train tracks.
• Stay alert and pay attention around train tracks; any time is train time.
• Trains can’t swerve; they have to stay on the tracks so keep your cars off the tracks.
• It can take up to 600 feet (two football fields) to stop a commuter train like MetroRail.
• Never walk on tracks.
• Always expect a train at any time, in either direction, on any track, and always watch for a second train.
• LOOK, LISTEN, & LIVE.

The Austin news stations have been doing a good job of following the start of the rail and the new dangers we might face.  A couple of my favorite stories are  below:

One of the most dangerous parts of any drive — for both motorists and for construction workers — are highway work zones.  Unfortunately, the dangers posed by construction zones do not receive a lot of publicity.   Maybe that is changing.  Yesterday’s New York Times contained a feature article:  Efforts Lag at Making Highway Work Zones Safer.    Some early take-aways from the article:

1. Work zone wrecks are a huge problem in Texas.  Many of the example accidents that the article discussed occurred here.

2. Work zone dangers come in any number of forms. Some of the more popular problems that people need to look for are  improper pavement drop-offs, barricades set up the wrong way, improper traffic stops, parking construction vehicles too close to the roadway, improper marking of construction.

3. There is no nationwide standard for work zone safety, and most regulations are left to the states.  This poses a problem.  For example, the article mentions that in one state, pavement drop-offs need to be addressed when the drop-off is three inches or more while in another state, the drop-offs only need to be address if more than five feet.

4. The problem is only going to get worse.  As a result of the Obama Administration’s stimulus plan, billions of dollars are being pumped into roadway construction projects. 

I’m convinced that this is such a problem that I’m going to devote a few posts to it over the next week or so.  In the meantime, I’d love to hear comments or suggestions from any of you that have experienced close calls in construction zones.

I’ve long warned injured persons about hiring lawyers who engaged in a high-volume mill practice. Now, a Stanford law professor has taken a hard look at settlement mill law firms. Professor Nora Engstrom has authored Run-of-the-Mill Justice in the Fall 2009 issue of the Georgetown Journal of Legal Ethics.

“Over the past three decades, no development in the legal services industry has been more widely observed and less carefully scrutinized than the emergence of firms I call “settlement mills”—high-volume personal injury law practices that aggressively advertise and mass produce the resolution of claims, typically with little client interaction and without initiating lawsuits, much less taking claims to trial. Settlement mills process tens of thousands of claims each year. Their ads are fixtures on late-night television and big-city billboards.”

In her article, Professor Engstrom interviewed forty-nine past and current settlement mill attorneys and non-attorneys to find out how they worked.

First, what is a settlement mill? Professor Engstrom says they generally have ten characteristics:

(1) They are high-volume personal injury practices. Conventional personal injury attorneys have around seventy cases open at any one time and serve approximately 110 clients per year. Settlement mill attorneys often triple that — juggling 200 to 300 open files on any given day. (Our firm tries to limit ourselves to twenty to twenty-five open cases at any one time.)

(2) They engage in aggressive advertising from which they obtain a high proportion of their clients. Most conventional firms rely on referrals from other attorneys or prior clients, but in settlement mills, almost all cases come from advertising. For settlement mills, obtaining a client via an attorney referral is said to be somewhere between rare and unheard of.

(3) They epitomize “entrepreneurial legal practice.” At settlement mills, it is assumed that claims will be straightforward. Standardized and routinized procedures are then designed and employed in keeping with that assumption. Efficiency trumps process and quality. Important tasks are delegated to non-lawyers. Factual investigations are short-circuited or skipped altogether. And negotiating with insurance adjusters and brokering deals is prioritized over work that draws on specialized legal education.

(4) They take few — if any — cases to trial

(5) They charge tiered contingency fees, fees that increase once cases are filed. While  this sounds good in theory, many attorneys used these increased fees to bully clients into accepting settlements.

(6) They do not engage in rigorous case screening and thus primarily represent victims with low-dollar claims.

(7) They do not prioritize meaningful attorney-client interactions. Attorney-client interaction is minimal and, when it does occur, tends to be paternalistic rather than participative. Except for agreeing to accept the ultimate offer, clients play little role in the dispute resolution process.  Clients met with their lawyers when the retainer was signed at the beginning of the representation and when the settlement check was delivered at the end.

(8) They incentivize settlements via mandatory quotas or by offering negotiators awards or fee-based compensation. These requirements and rewards put the focus on the number of files closed or the aggregate returns, as opposed to obtaining a fair value for each individual client.

(9) They resolve cases quickly, usually within two-to-eight months of the accident. Studies suggest that, even if no lawsuit is filed, around one year elapses between the accident and the settlement if a claimant is represented by counsel. At settlement mills, in comparison, cases are sometimes resolved in little as two months and usually within eight.

(10) They rarely file lawsuits.

So what’s the problem with the mills? Professor Engstrom concluded that those with meritorious claims likely get less than they would if not for settlement mills. Why? First, fast settlements depress the value of the claims. Second, settlement mills rarely file lawsuits, and the acts of not filing is correlated with lower settlements. Third, settlement mills commonly impose quotas or incentives on negotiators, which put the emphasis on turning claims over, rather than maximizing their value. Fourth, attorney reputation for going to trial affects bargaining. Because settlement mills have a reputation for avoiding trial, they have less leverage in their dealings with insurers and are less likely to obtain top-dollar.

What did the attorneys say? Professor Engstrom quoted one defense lawyer as saying that he was personally aware of cases I think were settled for $10,000, $15,000, $20,000 less because the adjuster knew the attorney handling the case was a settlement mill.

Even the settlement mill lawyers confirmed they were leaving clients’ money on the table. Former settlement mill lawyers reported that offers they received for comparable cases improved upon departing the settlement mill and joining a more conventional law firm.

You need to learn from this study.  If you or a loved one is hiring an attorney following an accident, I urge you to consider what a settlement mill firm might do to the value of your case. I also encourage you to purchase Professor Engstrom’s article for the $3.50 purchase price. If it helps you make an informed decision on hiring an attorney, it will be money well spent.

Many of our serious injury cases are the result of car or trucking wrecks on I-35.  Because it’s an interstate, with more cars and trucks traveling at higher rates of speed than typical roads, I-35 has more opportunities for drivers, construction workers, and others to be injured in accidents.  But it’s not a problem that’s limited to the Austin area.  The I-35 dangers start at the US-Mexico border in Laredo and continue up through the nation to the US-Canada border.  To try and bring a different perspective on these issues, I am teaming up with several other attorneys along the Interstate 35 corridor for a new blog series.  Over the next month or so, we’ll all answer typical questions that we are repeatedly asked by those injured in car or trucking wrecks, with an emphasis on issues as they relate to I-35.

The other attorneys that will be joining me on this little journey are:

Noble McIntyre and Jeremy Thurman from Oklahoma City, Oklahoma

Steve Lombardi from West Des Moines, Iowa

Mike Bryant from Waite Park, Minnesota.

One thing that excites me about this project is that it gives our clients and potential clients the opportunity to learn a lot.  Instead of getting one lawyer’s perspective on a question, you’ll have the benefit of answers from four or five different lawyers across the country.  And I always believe that the best way for personal injury victims to protect themselves from insurance adjusters and even other attorneys is to be as informed as possible.

I hope you enjoy the series.  If you have any questions you would like us to answer, please let us know.

Brooks Schuelke

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/.