Austin Bans Use of Hand-Held Cell Phones While Driving

Yesterday, the Austin City Council adopted a ban on drivers using hand held electronic devices, including cell phones.  The ban, to go into effect on January 1, 2015, doe contain exceptions for hands-free devices and for 911 or other emergency calls.  You can read more about the ban in this article by KXAN.

I have some mixed feelings about this.  On the one hand, I see these problems daily, and I preach about the dangers of distracted driving, including the curse of texting while driving, and, overall, I’m in favor of the ban.  On the other hand, I’m a bit concerned that this might be overreaching.  Talking on cell phones has become accepted, and it’s hard to legislate away such accepted conduct.

I hope the biggest effect of the ban is that we don’t have to see so many people texting while driving.  Police officers think the overall ban will make it easier to enforce existing texting while driving bans, and I certainly think that’s a good idea.

How Do I Settle A Claim With An Insurance Company Amicably?

This is another question I recently received.

A person was injured in a car wreck, they submitted a demand letter, and tried to negotiate, but the insurance company was stonewalling them.  What are they supposed to do?

There isn’t a good answer for someone in this situation.  Insurance companies may engage in stonewalling tactics that are designed to get you to accept less than the full value of your claim.

When you hire us, and this happens, our response is to file suit.  That’s the alternative and the hammer you can use to get a new adjuster, get a new perspective to the insurance company from a lawyer and to prove that you can enforce the claim.

But if you’re trying to represent yourself, you don’t have that option.  As a result, the insurance company, knowing that you don’t have a real alternative, doesn’t have an incentive to pay the full value of your claim.

This type of conduct is one of the reasons that insurance company studies find that claimants who are represented by lawyers do substantially better overall than those who try to represent themselves.

I am sorry to be the bearer of bad news to people in this situation.

Austin Police Chief Recognizes Austin’s Drunk Driving Problem

Austin has had a rash of drunk driving injuries in the last several months, including the huge SXSW wreck.

After Kelly Noel, a local popular blogger, was killed by a drunk driver this weekend, Austin Police Chief Art Acevedo is calling for a summit on drunk driving issues.  The article noted that fifty-five percent of Austin’s traffic fatalities this year involved drivers who were impaired by alcohol or drugs.

I don’t know whether a summit is the answer.  But I am encouraged by the discussion. Like alcoholism, recognizing you have a problem might be the first step in treating it.

Unfortunately, this larger problem only reflects what we’re seeing in our firm.  Over the last couple of years, we have been helping more and more clients who are being seriously injured by drunk drivers.  And while most of these cases have been late night wrecks, it seems there are more and more happening during the day.

This might be better for another article, but if you or a loved one has been injured by a drunk driver, and you’re looking for a lawyer to help, make sure the lawyer has ample experience in representing victims of DWI or DUI.  Most lawyers treat these as run of the mill car wreck cases.  But they aren’t.  There are a number of important steps and tactics that good attorneys utilize to help increase the value of your case.  Make sure you have a lawyer who can adequately represent you and your interests.

Auto Accidents: Understanding Texas Auto Insurance: MEDICAL PAYMENTS COVERAGE

Medical payments, or MedPay, is similar to PIP.  However, MedPay only pays for medical expenses (and not lost earnings).  The other significant difference is that MedPay does have a subrogation interest.  If you’re in a wreck and make a recovery against another party who caused the wreck, then you would have to reimburse your insurance company for any MedPay the company paid you.

All in all, MedPay is often priced very similar to PIP, but MedPay is a much inferior product.  We recommend to our friends and family members that they purchase PIP instead of MedPay.


Personal injury protection coverage (PIP) provides benefits to you, your family members, or others riding in your car when you’re in a wreck.  The coverage will pay for your medical expenses and 80% of your lost wages caused by injuries sustained in the wreck up to the limits of your policy.

Unless you specifically reject PIP coverage in writing, you will have $2,500.00 of coverage.  However, you can purchase much higher limits.

One significant benefit of personal injury protection coverage is that there is no subrogation interest.   Most insurance, such as health insurance or Medicare, has a subrogation interest.  That means that they might pay for your medical bills, but if you recover for those amounts from a third party who caused the injuries, then they will claim that you  must reimburse the health insurance company for the amounts they paid on your behalf.  However, PIP does not have a subrogation interest.  If they pay you benefits, you do not have to reimburse them if you make a recovery.

Another Austin Wrong-Way Driver Wreck

Last night, two people were killed in a collision when a driver was driving down Mopac the wrong way.

Just before 1:00 a.m., APD received calls of a driver driving southbound in the northbound lanes of Mopac.  The APD dispatched several police cars and even a police helicopter to try and intervene, but they couldn’t get there fast enough.  The driver of the wrong-way car, reportedly a 26 year old woman, collided head on with another vehicle near Duval Road.  The driver of the wrong-way car was pronounced dead at the scene. The other driver, Robert Murphy, was taken to St. David’s Round Rock Medical Center, where he later passed away.

It seems like these types of wrecks — where someone is driving down a highway the wrong way — should never happen.

But they’re a lot more frequent than we’d like to think.  I’ve been writing about wrong way wrecks in Austin for at least the last four years.  And in 2010, Austin had two wrong way car wreck fatalities within a couple of weeks of one another.

Sergeant Darrell Burnham, one of the officers working the scene of this morning’s crash, said he can think of three incidents on Mopac that occurred fairly recently.

Most of these wrecks have several characteristics in common:

  • Most occur at night  (today’s occurred at 1:00 a.m.);
  • Most of the wrong way drivers are either impaired by alcohol or drugs or, to a lesser extent, are elderly drivers (alcohol is suspected in today’s wreck); and
  • Many occur on roadways with confusing entrance/exit designs.

These wrong way wrecks are particularly problematic for several reasons.  They often involve fatal or serious injuries.  Due to the nature of the wreck, most of these are head-on collisions, which bring a tremendous amount of force.

They are also hard to avoid.  When an innocent victim is traveling in the proper direction, they are usually at the mercy of the wrong way driver.  And since statistics show that wrong way drivers are often impaired, making it hard for a person traveling the proper direction to really anticipate the wrong way driver’s next move.

Finally, these wrecks are going to become an increasing problem.  They often occur on highways that have confusing entrance and exit ramps.  As Austin grows, we have more and more large highway intersections that are potentially confusing and offer opportunities for wrong way drivers to enter roads the wrong way.

For more information on wrong way drivers, you can read some of my prior posts on the problem:

You can also read the Texas Transportation Institute’s worksheet: Wrong Way Driving on Freeways in Texas:  Problems, Issues & Countermeasures.



Summer Safety Tips: Oregon Tennis Player Alex Rovello Drowns In A Cliff Jumping/Diving Accident

I was prompted to start my standard Summer Safety Tips series by hearing today’s tragic news of Alex Rovello.

Alex, a tennis player at the University of Oregon, tragically died this weekend after diving near the water fall of a popular Oregon swimming hole.

Sadly, Alex’s story is not unique.  Each year, thousands of people are injured from jumping off of cliffs or rock formations into popular swimming areas around the country.  People just don’t realize the forces involved in high jumping.

According to the US National Park Service, if you jump from 20 feet above the water, you’ll hit the water at 25 miles per hour.  The impact is severe enough to compress your spine, break bones or give you a concussion — and that’s if you enter the water properly.  If you slip or mistime your jump, it is almost like hitting concrete. If you jump from 10 feet, you can reach speeds of 17 miles per hour — fast enough to damage a car in a car wreck, and fast enough to hurt you.

But in most of our Texas lakes, rivers and creeks, there are additional risks.  With our drought and fluctuating water levels, it’s very difficult to know what hidden dangers lurk below the surface.  It’s difficult to know what rocks, stumps, or other dangerous items lurk just beneath the surface.

In many ways, I’m a bit hypocritical on this issue.  When I was a kid, my dad lived on a lake, and we were always happy to jump off small rock formations.  But doing this job, I’ve seen too many seriously injured, including a good friend of mine, trying to have a little fun.  None of that fun is worth a life-time of problems.

Gas station lies about selling booze and jury returns 15 million dollar verdict in wrongful death case

Sometimes it is the little things in life that, once discovered, change the outcome of a trial.

This particular case took seven years to finally offer the family some sense of closure over the death of their 13-year-old son. The young boy was killed in a car wreck, as the drunken driver of the vehicle lost control and slammed into a tree. The car was full of teens that had been partying and everyone was inebriated. In fact, the group of friends had been going back and forth to a local convenience store that fateful night, buying booze.
They didn’t buy booze just once. They ultimately came to the gas bar and convenience store three times that night, stocking up on more alcohol each time. In short, the gas bar was selling liquor to underage minors. However, it wasn’t until the last few years that they finally admitted they had sold the kids booze. For years they denied the sales had ever happened.

When the case got to trial, the jury was angry that the former owners of the store had blatantly lied about the role they played in the deadly accident. It appeared they did not want to admit they had illegally sold alcohol to minors and that in doing so had precipitated the death of a young boy and created the perfect storm of events that would seriously injure three other teens. The jury handed down a $15 million verdict.

Although the young boy’s family was relieved to have the case finally resolved, they didn’t care that much about the jury award. The main reason they went to court was to try and ensure that others would get the message that it is dangerous to sell alcohol to minors. Nothing would bring the young boy back, but perhaps the fact that the former owners were held responsible for his death would demonstrate that such actions are illegal, immoral and unethical, and that eventually, those who sell to minors or over-serve those already drunk will be held responsible for their negligence.

Wrongful death lawsuits are usually not about revenge. They are a vehicle to make a point and get a message heard. They are one way for a grieving family to achieve some form of closure. If you have been in a situation similar to this one, make contact with an experienced Austin personal injury lawyer. You need to know what your legal rights are and what to expect should your case go to trial.

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

Parking Lot Accidents

I’ve written this before, but few things cause me as much stress as walking in a parking lot with my kids.  I am scared to death that a car backing out of a parking space won’t be able to see them.  They’re 12 and 9 now so they’re getting older and bigger, but even for them, there are still a number of large trucks or SUVs that are designed so that their drivers, when looking out the back window, can’t see my kids, much less younger kids.

Unfortunately, it’s often a deadly problem.

Today, Yahoo had a cover story about the issue.  The story centers on the tragic case of Judy Nieman, who accidentally backed up in a bank parking lot and ran over her 9 year old daughter, killing her.  Sadly, Ms. Nieman isn’t alone.  Every year, there are an estimated 228 fatal backing crashes every year with another 17,000 other injuries.

That’s too many.

The government has passed laws mandating that new vehicles have backup cameras, which are generally effective at reducing these wrecks (when the cameras are actually used — that’s another problem).  Unfortunately, federal regulators have repeatedly pushed back the deadlines for the effective date of the laws.

That means its up to us to protect our kids.  We have to be vigilant about watching for backing up cars and walking next to our children so that at least we’re visible to drivers.  And when we’re driving, we need to be cautious about backing up ourselves.

Because for now, our vigilance is the only thing that will prevent future backing crashes in parking lots.

Car Wrecks — Auto Insurance Basics

Many times, how we proceed in a case and the value of the case are governed by the amount and type of insurance available.  Thus, it’s important to know some basic information about auto insurance so you can understand how those decisions are being made.

Keep in mind that this is basic information.  There are a number of complex issues within each one of these areas.  For example, I’ve spoken around the state to lawyers regarding issues with uninsured/underinsured motorist coverage, one of the areas below.  Lawyers could listen to day long seminars (maybe even staying awake) on each of these areas because there are so many intricacies that affect claims.  If you have questions, ask your lawyer about it.


When you’re hit by someone, you need to know whether the person driving the car is covered by the insurance on the car.

Generally, a person’s automobile insurance covers that person, regardless of whether they are driving their car or someone else’s car, and anyone who is using that person’s car with that person’s permission.  For example, if Mr. Smith has an insurance policy covering his Ford Fiesta, the insurance would protect Mr. Smith while he was driving the Fiesta or any other car.  It would also cover anyone else driving the Fiesta as long as they have Mr. Smith’s permission to drive the car.

There are some policies that exclude particular people from coverage.  For example, if Mr. Smith had a son that had a bad driving record, the policy could specifically provide that the insurance was not covering Mr. Smith’s son.  These types of provisions can be especially troublesome when the other driver in your wreck has a low-cost policy, many of which have long lists of people who might normally be covered but who are excluded under the particular policy.

These coverage questions are particularly important when the driver of the car isn’t the owner.  One potential benefit in such a situation is that it might open up the possibility of two policy limits (one for the policy covering the owner of the car and one for the policy that the driver bought to cover his/her own car).  The importance of policy limits are explained below.


Every insurance policy has a maximum amount that the insurance company will be required to pay, regardless of the severity of the injuries suffered by people in the wreck.  This maximum amount is referred to as the “policy limits.”

In most instances, you will see or hear policy limits referred to with two numbers — the per person and per occurrence limits.  For example, current law requires Texas drivers to carry insurance with limits of at least $30,000 per person and $60,000 per occurrence.

The first part of that is fairly easy to understand — in an example like that, the most the insurance company could be required to pay any single person in a wreck is $30,000.

The second part is more tricky.  The “per occurrence” limit is that maximum that the insurance company could be required to pay in total, regardless of the number of people injured in a wreck.

For example, if two people are injured in a wreck, the insurance company couldn’t be forced to pay either of them $30,000 and couldn’t be forced to pay a total to them of more than $60,000.

This applies regardless of the number of people hurt.  If someone with a $30,000/$60,000 policy causes a ten car pile-up that injures fifteen people, the insurance company is not required to pay more than $60,000 in total to all of the injured people.

While $30,000/$60,000 is the minimum allowed by law, those amounts may increase.  It is not unusual to find policies that are $50,000/$100,000 policies or even $100,000/$300,000 policies.  But policies much higher than that are very rare except in cases involving commercial vehicles.


These are two coverages that you might have purchased on your own auto insurance.

PIP can cover you two ways.  If you are in a car whose policy has PIP, then you are eligible for the PIP benefits if you’re in a wreck while in that car.  Similarly, if you own a car and your insurance has PIP coverage, then you qualify for those benefits whenever you’re in a wreck no matter whose vehicle you are in.

PIP will pay for your medical expenses and 80% of your lost wages up to the policy limits of the policy.

One benefit of PIP is that, unlike health insurance or many other types of insurance, you don’t have to reimburse the insurance company if you make a recovery from the person who hit you or some other third party.

Med-Pay is a poor substitute for PIP.  It only covers medical expenses (and not lost wages), and you do have to pay your insurance company back for your Med-Pay benefits if you make a recovery from someone else.

As a lawyer, I think PIP is a very important insurance.  I’ve seen a number of clients who find themselves unable to work due to a wreck, and their PIP benefits are the only thing that help them pay their bills while their case progresses. It is not expensive so I urge everyone who can afford it to buy it.


This is another type of coverage that you buy when you purchase your own auto insurance.  It protects you if you’re in a wreck and the driver who causes the wreck either doesn’t have insurance or doesn’t have enough insurance.

If you bought UM/UIM insurance for your car, it covers you and anyone in your car when a wreck happens.  It also covers you if you’re in any type of auto accident, whether you’re in your car or not.  This includes providing coverage if you’re hit by a driver while you’re a pedestrian, riding a bicycle, or even sitting on your front porch.

Like PIP, I think it’s critical that you purchase UM/UIM insurance.  Despite laws to the contrary, there are a significant number of drivers out there who don’t have any insurance at all.  And when drivers have insurance, most only carry the state minimum of $30,000.00.  If you’re hurt and need even minor surgery, that $30,000.00 won’t even be enough to reimburse your health insurance company for your medical expenses.  You pay a lot of money for insurance to protect others; you should spend the money to protect yourself also.

Perlmutter & Schuelke, LLP maintains offices in Austin, Texas. However, our attorneys and lawyers represent clients throughout the state of Texas, including Dallas, Houston, San Antonio, Forth Worth, El Paso, New Braunfels, San Marcos, Kyle, Buda, Round Rock, Georgetown, Lockhart, Bastrop, Elgin, Manor, Brenham, Cedar Park, Burnet, Marble Falls, Temple and Killeen. By Brooks Schuelke

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