Once every two years, members of the Texas House of Representatives and the Texas Senate get together in Austin for a couple of weeks to drink on Sixth Street (I presume) and write laws that make lawyers’ lives miserable. This year, they didn’t write too many laws dealing with personal injury liability, but the laws they did pass are sure to give lawyers and judges headaches. Beginning September 1, 2021, new rules apply to automobile accidents involving commercial vehicles and the liability of employers during a pandemic.
For commercial vehicle liability, it’s important to understand what the old law was prior to the new law. Prior to the new law, if a commercial driver was driving for Amazon, Wal-Mart, or any other number of commercial carriers, both the negligent driver and the company were sued together under the legal doctrine of respondeat superior. Respondeat Superior is a fancy Latin term that makes the employer liable for the negligent action of the employee as long as the actions were in the scope and course of their employment. (Respondeat superior literally translates to, “let the master answer.)
The new law (H.B. 19) changes the way that the lawsuit is presented to a jury. Under the old rules, the jury was told about the liability of the defendant driver and also determined whether the defendant driver was operating in the course and scope of his employment with the defendant company. Under the new law, the jury only hears about the liability of the defendant driver and the jury will make its damage award based upon the false assumption that the defendant driver will be personally liable for the damages. The jury will likely never know the identity of the employer. This allows an unsympathetic employer (Amazon, etc.) to hide behind a sympathetic driver (a working man just trying to pay his bills).
Interestingly, this law also applies to Uber and Lyft drivers. It will probably take a few years of cases going up on appeal to fully understand the impact on this law as it relates to personal injury cases.
The second major personal injury law that passed this year is Pandemic Liability Protection Act. Under the Pandemic Liability Protection Act an employer cannot be held liable for the transmission of Covid-19 (or any other disease declared a pandemic) except in the following two instances:
Where the business knowingly failed to warn the individual of, or fix, a condition within the business’ control, despite having a reasonable opportunity to do so, with the knowledge that the individual was more likely than not to come into contact with or be exposed to the pandemic disease, and the failure to warn or fix the condition was the cause in fact of the individual contracting the disease; or
Where the business knowingly failed to implement, refused to comply with, or acted in flagrant disregard of the standards, guidance, or protocols put forth by the government that are intended to lower the likelihood of exposure to the pandemic disease, despite having a reasonable opportunity to do so, and this failure or refusal to comply was the cause in fact of the individual contracting the pandemic disease.
This is pretty broad protection for employers. However, personally speaking, I was unsure prior to the enactment of this law how a plaintiff would be able to show with reasonable certainty that he or she contracted Covid-19 from his/her place of employment. The problem with a plaintiff showing he/she got Covid-19 from his/her employer is that, due to the high transmissibility of Covid-19, how can a plaintiff show that he/she didn’t get it at the grocery store, the gas station, or any number of places?
*The opinions and views expressed herein are not offered as legal advice. If you have an issue that requires a personal injury attorney, please contact the Law Office of Shaw Clifford (281) 794-3738 or email@example.com.
Getting sued is one of most the nerve wracking experiences that one can have. There is even psychological phobia caused by the fear of getting sued called liticaphobia. Obviously, there are things that we can do in our personal lives and our business to limit our exposure to lawsuits, such as driving carefully or work hard to make your customers happy. However, no matter how hard we try, ultimately, you may still end up getting sued.
The advice below is a non-exhaustive list of things to remember when you believe that you might get sued. Although this blog is focused more on business owners, generally, this advice applies to homeowners worried about getting sued by a neighbor, or drivers that have been involved in a traffic accident. Although it is not mentioned here, the best advice I can give someone who is about to get sued is this–don’t panic.
Save Your Documents
Most business transactions involve contracts, work orders, and receipts. When a customer or supplier makes a claim for breach of contract, the most important information to know is, “What does the contract say?” If the services were provided without a written contract, then the case gets bogged down with both parties claiming that the contract meant one thing versus another. Ultimately, the only way to determine what the terms of the contract were is to let a jury decide. This is never a good thing.
If you are in the business of providing goods and services, then you need to have all of your business transactions in writing. Your contracts should state the names of the parties, what goods or services are being provided, when they will be provided, the payment terms of the contract, the penalties for terminating the contract, and the remedies if there is a breach of contract amongst other considerations. A lawyer can sit down with you and discuss these issues and draft a contract that meets your business needs.
Once you have written contract, though, it’s important to keep a copy of it. Otherwise, we are back to a he said/she said situation that ultimately the jury will decide. In addition to the contract, make sure to save all email and text message communications between you and your customers/suppliers. These documents are essential, and they will form the backbone of your legal defense.
2. Talk to Your Insurance Company
A good insurance agent is as important to a business as a good lawyer. A good insurance agent will sit down with you to discuss the potential liabilities that are faced by your business and take the time to make sure that the potential claims made against you are covered. A bad insurance agent will sell you the first policy he finds, take your premium check, and wait until next year to call you again. Hire a good insurance agent.
Once you have received notice that you may be sued, you need to contact your insurance agent so that he may give notice to the insurance company. Obviously, the most common insurance policies that individuals own are car insurance, homeowner’s insurance, and a title policy on their home. For businesses, insurance can get more complex with policies that cover the general operations of the business (Commercial General Liability “CGL”), worker’s compensation coverage or an employers’ liability policy, motor vehicle coverage for business owned automobiles, and many other coverages. Each of these business policies will have different coverages and different exclusions. Again, it is very important that you hire a good insurance agent.
The good news is that if your insurance policy does cover the claims being made against you, your insurance company will provide you with an attorney to defend the case against you, and they will pay any judgment against you (up to the policy limits). All you as the insured will be required to pay is the deductible for the claim. If the claim is not covered by the insurance policy, then it is definitely time to contact an attorney if you haven’t already.
3. Contact an Attorney
This step can actually be your first step of your journey dealing with a potential lawsuit. In fact, if you really are just out in the weeds not knowing what to do, I would recommend that you contact an attorney first. The advice you get should be similar to what is provided above.
This is a good idea when it appears that there will not be any insurance coverage because the claims being made by the other party are not covered by insurance. (For example, generally speaking, claims for breach of contract are not covered by insurance.) Also, there are times when your insurance company will agree to defend the lawsuit against you, but will not cover the damages against you. In this situation, you need a lawyer to look after your interests as it relates to the insurance coverage.
When looking for a lawyer, there are a couple of things to consider:
(1) Is this the kind of case the lawyer handles? If someone calls me and asks if I can represent them on a divorce case, my answer will be no, but I can refer you to someone. I don’t handle divorces, and no matter what the client offers to pay me, I will not represent a client on a divorce case. Make sure that your attorney actually handles the type of case you have.
(2) Does the lawyer have the experience to succeed in this case? Experience comes from both the number of years that the lawyer has been practicing law, but also the number of times an attorney has done a task. This can be difficult to judge. I remember a few years back when I was practicing criminal law, I watched a trial being handled by another criminal defense lawyer. This lawyer probably had 30+ years of experience trying criminal cases. However, when it was his turn to cross-examine the witness, he couldn’t ask a basic question. The lawyer had plenty of experience, but it was wasted because he couldn’t ask a question.
3. How comfortable are you communicating with the attorney? This may be the most important factor in determining whether to hire an attorney. Lawsuits take time. Before Covid-19 happened, the average time from filing a lawsuit until trial was about 12-18 months. After Covid-19, the wait times are even longer due to a backlog of cases. Understand, you will be communicating with your lawyer for a long time. Your lawyer doesn’t need to be your best friend, but it needs to be someone you can communicate with and trust.
4. Do Not Avoid Service
This may sound like a pretty basic thing to say, but it must be said. Years ago, I represented a home builder who got into a dispute about the quality of the work one of his subcontractors did on house. The contractors hired an attorney, and the attorney sent a certified letter to my client in accordance with the Texas Property Code. My client figured if he didn’t pick up the certified letter, then he could avoid being sued. That’s not how it works.
Instead, the lawyer for the subcontractor filed a lawsuit anyway. A dispute that could have been resolved relatively easily was now a lawsuit with two lawyers gearing up to fight. This ended up costing my client more money. The Texas Rules of Civil Procedure provide a number of ways to serve you and your business with a lawsuit. Don’t try to be clever and avoid service. Just accept the lawsuit and call your attorney.
5. Discuss Your Budget with Your Attorney
Defending against a lawsuit is not cheap. There are attorney’s fees, expert witness’ fees, and various case costs. It’s impossible to know for sure how much it will cost to defend the case all the way through trial, but your attorney should be able to give you an estimate through various points of litigation (answer, discovery, mediation, and trial).
Often when someone gets sued, they get angry and they want revenge. However, it is important to understand that if you own a business, getting sued is just one of the expenses that come with operating a business. Having an estimate of what it will cost to go through trial will help you decide if it is worth it to go forward. For example, if you are being sued for $10,000.00 and your lawyer tells you that it will cost $20,000.00 to defend the case, then you and your attorney need to talk about settling the case, even if you did nothing wrong. That’s not a fun conversation to have, but it is an important one.
If you have any questions regarding the information in this post or any other legal questions, please feel free to call me, Shaw Clifford, (281) 794-3738
If you have ever been involved in a car accident or had to make a claim on your home owner’s policy, then you are familiar with the worst part of the entire insurance claims process–Insurance Adjusters. Typically, people I talk to who have tried to handle an insurance claim by themselves have a common story. They make their claim and speak to an adjuster. A couple of days later, they call the adjuster, but the adjuster tells them that their claim has been reassigned to another adjuster. After they speak to the new adjuster, another week goes by, and they call the new adjuster again only to be told that another adjuster has been assigned the claim. This goes on over and over again. Wash, rinse, repeat! What is happening (shuffling claims from one adjuster to another) is not an accident or coincidence, it is the insurance company’s strategy.
Insurance adjusters operate under what are known as the Three D’s of Insurance Defense (Delay, Deny, and Defend). By shuffling you around to all of these different adjusters, the insurance company is delaying the settlement of the claim. It’s a very effective strategy by the insurance company, because often times, people get so frustrated, they simply quit and abandon their claim against the insurance company.
Hiring a lawyer at the beginning of the claims process, can avoid this unnecessary delay. When a claim hires me, I send a notice letter to the insurance company letting it know that I represent the client. Typically, the claim gets assigned to one adjuster, and it never moves on to any other adjusters. The result, is that the unnecessary delay is avoided.
The other benefit of hiring a lawyer is that your lawyer will gather the documents and information necessary to prove your claim. This is important for not only getting the most money possible prior to filing a lawsuit, but if the insurance company decides to deny the claim and defend itself in court, the attorney is ready to take the case to court. The result of this is that typically, a lawyer can get a higher settlement for his client than the client can get alone.
Obviously, the question that most potential clients have is, “What is this going to cost me?” At the Law Office of Shaw Clifford, we handle insurance claims (both car accidents and other types of insurance claims) on what is known as a contingency fee basis. A contingency fee means that we at the Law Office of Shaw Clifford only get paid if we recover money on your claim. If no money is recovered, then you owe nothing. If you would like to discuss your car accident or insurance claim with an attorney, call Shaw Clifford 281-794-3738.
Years ago, my old boss told me a story about a lawyer he used to work with when he was a young lawyer about another lawyer at his law firm picking a jury. I don’t remember the other lawyer’s name, so I’ll call him Pete the Personal Injury Lawyer. Pete got assigned a car wreck case from his boss that was a dog. There was very little liability on the other driver, and the client’s injuries were minimal. If the plaintiff had not been Pete’s boss’s yard guy, the firm would have never taken the case.
The case finally went to trial, and Pete didn’t care about the outcome. Pete just wanted to get the case over with. During jury selection, Pete got up and asked only one question of the jury, “Can you be fair?” Everyone on the jury panel nodded their head that they could be fair.
Satisfied with their answer, Pete turned around looked at the judge and declared, “Your Honor, I will take the first twelve jurors.” This happened to be the first jury trial defense attorney had ever tried. Confused and flustered, he stood up and objected, “Your Honor, I object!. That…that’s not in the rules!” The judge just smiled and told the defense lawyer to ask his questions. Surprisingly, Pete won the case.
The most common question I get as a lawyer is how do I avoid getting selected for a jury. The Texas Bar Association would not appreciate it if I wrote an blog about that, and I don’t want people to avoid jury duty. I need jurors for the cases I try. Otherwise, I would have to let judges decide my cases, and that is no bueno. Instead, this blog is about how I chose who gets on my jury.
The first thing to understand, is lawyers don’t really chose who gets on the jury. Instead, lawyers chose who doesn’t get on the jury. The way lawyers chose who doesn’t get on their jury is through strikes. In Texas, their are two types of strikes–strikes for cause and peremptory strikes.
A strike for cause occurs when a potential juror has stated that they cannot follow the law or be a fair and impartial juror. This happens quite often in personal injury cases. For example, if I’m trying a car wreck case, I will always ask the potential jury members whether they can award the types of damages my client is seeking.
First I will ask the jury panel if they can award damages for medical bills. Usually, everyone will say yes. Then I will ask if they can award damages for lost wages. Again, usually, everyone says yes. Then I will ask whether they can award damages for pain and suffering. This question always gets at lease one person to raise their hand and say no they can’t award damages for pain and suffering.
You would think that this potential juror’s answer would bother me, but it doesn’t. In fact, this is the nicest thing that potential juror could have done for me. I now know that, since he can’t follow the law and award damages that my client is entitled to, that potential juror is off my jury. I always thank the juror who raises their hand to this question. I tell them, “I know that you know that is not the answer I wanted to hear, but I appreciate you being honest. I bet other potential jurors have the same opinion.” Then I ask everyone if they agree with the juror. Usually, at least another half dozen potential jurors raise their hand. Awesome! I now got rid of another six jurors.
The other way to remove potential jurors is through peremptory strikes. Peremptory strikes are somewhat controversial, and some states don’t allow them. Basically, a peremptory strike allows the lawyers to remove potential jurors for any reason at all, except for race.
When you show up to jury duty, you will be given a card to fill out. The card asks basic questions (name, age, address, employment, and race) about the potential jurors. Based upon the answers to these questions, lawyers will start jury selection with an idea of who should and shouldn’t be on the jury.
Lawyers all have their own theories about who to use peremptory strikes on. Some lawyers don’t want engineers on the jury. Some don’t want accountants on the jury. Depending on the case, some lawyers may want more men or more women on the jury. Personally, I don’t think any of those things work. I typically use my peremptory strikes on the potential jurors who are either mean to me or nice to the other lawyer.
After all of the questioning of the jury panel is over, the lawyers and the judge get together to discuss which jurors should be stricken for cause. Once those jurors are removed, the lawyers (in secret) will fill out a list of the potential jurors that they want to use their peremptory strikes on. The clerk of the court will compare the lists of the jurors that were stricken. Then, the first twelve jurors (six in County Court) that weren’t stricken are called out to sit in the jury box. That’s how a jury gets “selected.”
So, I’m sure your wondering, how can I increase my chances of getting on a jury? First, being at the front of the line is the biggest determining factor. Unfortunately, you don’t get to decide where you are in line. The bailiff puts the jury panel in an order assigned at random. The second way to make it on a jury is to stay quiet. When the lawyers are asking questions, about whether you can follow the law or your opinions on various topics, they are asking those questions to determine whether they should strike you from the jury. If you don’t answer, they don’t know what to do with you, so you get to stay. Finally, be nice to the lawyers, but not too nice. You don’t want to get kicked off the jury because you were mean to one lawyer or too nice to the other lawyer.
Thanks for reading. I hope these tips will help you get on the jury the next time you are called for jury duty.
Recently, I settled a client’s car wreck case. My client had been involved in a serious car wreck, and he sustained a herniated disc in his neck and a torn rotator cuff. After all of his medical treatments were finished, my client had over $60,000 in medical bills. The problem, the guy who hit him only had $30,000 in insurance coverage.
This situation is very common. In Texas, all drivers are supposed to carry at least $30,000 in liability coverage. Unfortunately, in Texas, over 14% of drivers carry no insurance at all. As you might guess, the people who aren’t responsible enough to carry insurance, are probably the most likely to get into a car wreck.
In order to prevent a situation where you are left without insurance money to cover your losses, there are a couple of options you should consider. First, there is Personal Injury Protection (PIP) insurance. PIP is a no fault insurance coverage that provides up to $2,500 in insurance coverage if you are involved in an car wreck. Money from a PIP policy can be used to cover medical bills and lost wages. When you purchase insurance, PIP coverage is automatic unless you sign a waiver.
Next, there is Uninsured/Under Insured Motorist (UM/UIM) coverage. This coverage applies when the negligent driver either has insufficient insurance coverage, or no insurance coverage at all. The minimum UM/UIM coverage in Texas is $30,000. However, if you have a higher liability limit than the minimum, you can purchase a UM/UIM policy equal to your liability limit. I would personally recommend having a UM/UIM policy equal to your liability limits, and I would recommend getting as much liability coverage as possible. After all, why would you want to provide greater protection to a stranger than you would yourself?
In my example above, my client simply wanted to purchase the cheapest insurance policy that he could. Unfortunately, that meant going to a discount insurance company that had him sign the PIP waiver and didn’t recommend to him that he should get UM/UIM coverage. For just a couple of more dollars per month, my client would have had another $32,500 in insurance coverage available to him to cover his medical bills. Unfortunately, that wasn’t the case (I did get his medical bills reduced, and he did get some money for his injuries, but it should have been more.)
Remember, the next time you are shopping for car insurance, you want to protect yourself as much or more than the stranger next to you in traffic. When you consider your policy amount, I would strongly recommend getting as much liability coverage as you can afford, UM/UIM coverage equal to your liability limits, and never sign the PIP waiver.
If you made it all the way to the bottom of a blog about insurance coverage, God bless you!