Oct 20, 2011 | Uncategorized
As you no doubt noticed, I have not blogged in a while. The reasons aren’t really important, but they include work and general indecision on what to blog about. I could have written about Escobedo, Loser Pays, Mandatory arbitration, or a host of other legal issues which have generally sickened me as to the state of law and accountability in Texas, but just decided to take a break and come back with a rant on these topics next time. During my break I became one of those Ipad people. I, of course justified it by stating how it would make me more productive, it would be easier to travel, etc. etc. I sent out e-mails asking for favorite apps for work and fun and then loaded them on my trusty Ipad2. Now I have dropbox, iannotate, goodreader, blackjack, facebook, etc. all loaded and ready, but still don’t understand how they all work. I am writing this blog on my laptop as I am nowhere near as fast on the Ipad. So here are my question and request: What is your favorite apps, why, what the heck do they do and how do you work them? I would really appreciate it if each reader could send at least one suggestion, even it is already mentioned.
Jul 13, 2011 | Uncategorized
Below is a link to the Haygood opinion.
http://scholar.google.com/scholar_case?case=8478677452372294245&hl=en&as_sdt=2&as_vis=1&oi=scholarr
Jul 12, 2011 | Uncategorized
Texas Supreme Court allows drunk drivers and others who cause car wrecks to reduce how much they will have to pay. Drunk Drivers get benefit of your premiums for health Insurance by getting credit for the negotiated rate.
This should have been front page news in papers across Texas this past week as our Supreme Court issued its opinion in the case Haygood v. Escabedo. Did you see a single paper discuss this ruling? Have you heard any of the radio or TV talk shows discuss this case? Why not? Where is the outrage?
I hear comments from people every month who call me about a workers compensation claim, medical malpractice or other issues. I tell them I can’t handle it because the law has made it almost impossible. They almost invariably tell me that it wasn’t supposed to impact their case only those frivolous ones. When I ask them why they weren’t mad and outraged when the laws were being passed or the Supreme Court was “interpreting” them, they always say it didn’t impact me so I didn’t pay attention. The only outrage about our rights being taken away nationally and in Texas seems to be coming from the trial lawyers. I am proud to be in the outraged group.
So what has the Texas Supreme Court done in its latest piece of judicial activism? Their twists and turns distort the law so much it would make a contortionist envious.
The Court’s decision in Haywood v. Escobedo allows the person or company who harms you or your family to benefit from the health insurance you have paid premiums for all these years.
The Court argues there ruling is necessary to prevent a “windfall” to the claimant (that would be the person injured, maimed or killed by the drunk or other reckless driver to us normal people).
They also argue they are just interpreting the law as the Texas legislature wanted. Hard to believe that is the case when the legislature actually tried to repeal the law they are “interpreting” the session after they passed it as they realized what it truly was — which is a windfall for the drunks, reckless drivers and their insurance companies. However Governor Perry vetoed the repeal of the bill so it is still on the books.
So here we are with an Activist Court that needs to protect the drunks and insurance companies, but how? They have already overturned virtually every jury verdict for any Plaintiff that comes their way. So rather than wait until a jury hears all the evidence and votes to compensate the injured person, they have decided to limit what the jury can hear so the compensation will be even lower and the insurance companies will have to pay less, make more profits and be able to contribute to all the expensive political campaigns.
Here is how the Court accomplished this with their latest decision: Let’s start with a situation where you are hit by a drunk who has a policy of $50,000.00. You are taken by life flight to the hospital where you stay for a week. You then have to go through rehabilitation. After about four months you are mostly better. You missed a month of work and still can’t do everything, but hopefully you will get where you can sleep through the night and play with your kids without having to tell them Daddy needs to rest. You have worked hard for years and paid for your health insurance at the cost of some vacations you wanted to take, but you knew how important it was for you to provide coverage for you and your family in case a situation like this happened. The medical bills were over $100,000.00, but because of your group plan they managed to reduce the total to $35,000.00 and since you met your deductible earlier in the year, you don’t owe anything else.
You send the bills to the drunks’ insurance carrier and ask that they pay the $50,000.00 policy limits because your medical bills alone are over $100k. Pretty straight forward right? You shouldn’t even need to get an attorney to settle this case. The operative word there is shouldn’t.
The reality is the insurance company will tell you we don’t owe $100k in medical because we get to take credit for your health insurance premiums and negotiated rate so all we will owe is $35k and we don’t think all of that is related because we know you hurt your neck 15 years ago when you were putting in fence posts and saw a chiropractor one time so we think all your neck issues are related to that and not this head on collision. So with the paid amount being $35k and us taking out some of the neck issue which we believe is not related (and because we can), we are willing to settle your case for $28,500.00.
What gives them the right to get the benefit of your paying premiums all those years: “Home Office” which is what they consider the Texas Supreme Court. Why shouldn’t they? They have won virtually every case that makes it there. Now the Texas Supreme Court has ruled that the only evidence a jury may consider in determining medical expenses are those amounts which were actually paid or will be owed by the person injured. So all those years of paying premiums and making sacrifices for you and your family to be covered is now benefitting the person who caused the wreck. The jury is not allowed to hear about how the bills were over $100k and because you had insurance it was reduced to $35k. They are not allowed to hear about the premiums you have paid to make that reduction possible. They may not even be allowed to hear about the deductible if it was met before this wreck. All because our Supreme Court has determined that it would be a “windfall”. How is it they never seem to be have a problem when insurance companies have a windfall of profits.
So if you happen to serve on a jury or hear about someone on a jury who talks about how this person was in a wreck but only had xxx in medical you can be fairly certain that it is at least 3x that amount of actual medical charges.
For my lawyer friends we know there are also significant issues regarding how Section 18.001 will be impacted and other battles over what constitutes paid –Is a deductible to be considered? Co-pay?
Some of you may know that I spent my senior year of high school attending gymnasium in Germany (which is the German equivalent of our U.S. high school). One of the things required in history classes was a complete study of the Nazi takeover both in political and military terms, which included the apathy and violence. The rational was if you never forget you will never repeat. If you were to ask someone who lived through that time how they could let it happen they would tell you it was not a sudden change. Rights were taken away one by one and it always was something that didn’t concern them. If someone was complaining about this or that they didn’t care because it didn’t impact them. Until one day it did. Then it was too late. Everyone asked how could “they” let this have happened? And then it became clear they were the “they” who allowed it.
As always I welcome comments.
Jun 27, 2011 | Uncategorized
Tonight HBO films will air Hot Coffee at 8:00pm central time. I wrote a blog about personal responsibility on March 23 which included my view of the McDonald’s case. I had a number of people who commented that they did not realize how bad she was burned, etc. I urge everyone to watch the show, and write your opinion, comment, etc. here.
If you look at the previous blog it is pictures of the new courthouse in Fort Bend County. Sorry about the haziness, but I forgot to wipe the sea mist off the lens from my recent trip.
Finally, the latest attack on the citizens of Texas by Governor Perry and the “Tort Reform” group. I wrote about TWIA previously, now the Governor is claiming it will require an emergency session to protect the TWIA from any damages other than actual (no attorney fees, extra damages) despite their complete mismanagement and failure to pay claims. Perry does not see the fact that people cannot get their homes fixed and have to pay out of pocket for repairs and a place to live despite paying premiums for coverage. I guess it is not a problem to Perry who is living in a Hill Country Home costing taxpayers over $10k a month for the last several years as the repairs are done on the mansion. Maybe if he had pay out of pocket and fight with the insurance company he would have a different view (like how real Texans are impacted by insurance companies) rather than the view he has of how much more will they contribute to my campaign fund.
Jun 24, 2011 | Uncategorized
May 17, 2011 | Uncategorized
First I apologize for the length of this blog, but I do not speak in sound bites or catchy phrases which are designed to hide the true nature of the discussion.
What happens when you do such a good of a job that you are no longer needed? You create an emergency which justifies your existence. That is what is going on in the Texas legislature right now.
Texans for Lawsuit Reform have done an amazing job in reducing the rights of citizens to bring suits to recover damages. They have done such a good job that there is no further need for reform, but then they will not continue to get all their money and be able to send money to the legislature. Baylor College of Law Review did a survey to the judges of Texas and 86% of the judges said there is no need for additional tort reform.
There are currently sanctions available for stopping frivolous lawsuits, including money sanctions and even the potential to take the attorney’s license away for filing frivolous lawsuits. So the Texas House passes a law which is a one-way street, if a small business or individual loses to a defendant they could owe them all their attorney fees and expenses, but if the same small business or individual wins the defendant is not responsible for to pay them their attorney fees and expenses. Is that fair?
Why would our representatives pass such a bill? Who has contributed to their campaign funds?
If the Senate passes this we will have a one way loser pays law, but it is even stranger than that. If the same small business or individual wins, but wins less than what the defendant has offered they can still be responsible for paying the defendants’ fees and expenses.
Here is an example of what could happen (thanks to Mark Lanier) a young woman eight months pregnant who is on her way to work when she is hit by a tractor trailer driver who ran a red light, and is in violation of Federal standards regarding hours and medications. He slams into the young woman’s car injuring her. She is rushed to the hospital where she is treated for her injuries. Unfortunately her unborn baby is killed. She brings a case against the truck driver and his company. They offer to pay her medical, lost wages and a little something for her pain, but refuse to offer anything for killing her baby. The Court rules that under Texas law she can not recover for the death of her baby. This young woman who has suffered the death of her child could now have to pay the very persons who caused the death of her child all their attorney fees and expenses.
The time for Texans for Lawsuit Reform has come and gone. Their only function now is to continually come up with new “emergencies” to justify their existence and fund raising. While teachers, police, fire fighters, sanitation workers, etc. are being laid off and our cities and towns are suffering from real emergencies from budgetary issues and wildfires, our legislature is wasting time on an issue which does not exist except in the pocketbooks of those that fund them. When the same judges who said there was no need for any tort reform were asked if they had even seen a frivolous case, less than half had ever seen even one.
There are always two sides to a case – the company or person brings the claim and the person or company defending it. Just as there is a potential for a frivolous case being brought there are frivolous defenses which require cases to be filed rather than settled.
Some examples of frivolous defenses include an insurance company which has in-house lawyers getting paid if they are defending cases or not, and implements a policy to deny virtually every case which of course results in lawsuits having to be filed. All of which could have been avoided if the company had simply fairly evaluated the claims for settlement.
Another example is the uninsured coverage you have on your vehicle which you have to use when you are hit by a drunk driver who has no coverage. You make your claim, but the insurance company denies it because the current status of the law in Texas. The insurance company does not owe anything until a judgment is entered and even then all they will ever owe is the amount of the policy, no attorney fees, expenses, etc. So there is no downside to denying virtually every claim. The worst case is that they owe what they should have paid in the beginning, but by raising the cost of litigation through filing fees, depositions, etc. they can essentially blackmail their own insured into taking less because they will end up with less than the policy once they have to pay the litigation costs.
This law would have a chilling effect on the small company who sues to get paid for the work they have done and gets met with an army of defense lawyers who drag the case out and make it as expensive as possible to the point where their only option is to give up rather than continuing to pay legal fees and expenses even though they are right. Under the House bill they would not only owe their own lawyers, but those of the other side. It could result in a decision just to take the loss even though the debt is justly owed since to pursue the claim might result in bankruptcy.
Another aspect of the proposed law which is overlooked is what could happen with health insurance cost. If you are injured in a crash who should pay your medical bills and lost wages? The person that caused the wreck, of course, but under this law there will be many times where it would be a better course of action not to take the risk and just let your own health insurance and disability coverage pay for your loss. So what happens — the costs for us all go up because rather than have the person responsible pay we all will be paying. As the system exists if you recover for your injuries from the other person responsible for the wreck, your health coverage will generally get their money back under a subrogation claim. That allows them to provide coverage at a “reasonable” rate. What do you think will happen when they do not have the opportunity to recover their money? Will they just eat the extra cost or pass them on to us the consumer?
So again I come back to where is the emergency here? Is it just that Texans for Lawsuit Reform (TLR) needs to refill their coffers and justify their existence? It is even more concerning that our representatives and governor have gotten so used to the TLR money that they do not want to let it go even at the expense of all the true issues facing Texas today.
