When a person is wrongfully killed in Texas due to the fault of another person, company, or a defective product the law provides two types of claims that may be brought. The first is a “wrongful death” claim which may be brought by the surviving spouse, parents and children of the deceased. Siblings and other relatives may not bring a claim. The damages that may be recovered in a wrongful death claim include “pecuniary loss” (loss of the care, maintenance, support, services, advice, counsel, and contributions of a monetary nature that the survivor would have received from the decedent), “loss of companionship and society” (such as loss of love, comfort, and companionship the survivor sustained), “mental anguish” (emotional pain, torment, and suffering), and “loss of inheritance.” Of course the person bringing the wrongful death claim will have to have evidence of these damages. Although it is virtually impossible to put a dollar value of some of these things, juries in wrongful death cases are asked to do so.
The second type of claim that may be brought in Texas when someone is wrongfully killed is a “survival claim.” This claim may be brought by the estate of the deceased or a representative of the estate. The damages that may be recovered include the pain and mental anguish that the decedent experienced before his death, medical expenses for the treatment of the decedent’s injuries, and funeral and burial expenses. When a person dies instantly in an accident and does not incur any medical bills, a survival claim is limited to the funeral and burial expenses. On the other hand if the decedent experienced suffering before death then damages for pain and mental anguish may be awarded.
Exemplary or punitive damages may be recovered in both survival and wrongful death claims if there was “gross negligence.” The purpose of these damages is to punish the wrongdoer and to deter such conduct in the future.
You have been injured in a car accident that was not your fault. You have mounting medical bills, you have taken time off work because of your injuries and to go to treatment and you have experienced a great deal of physical pain and emotional drama.
You felt the insurance company might treat you fairly so you tried to settle your claim on your own, only to find that the insurance company doesn’t care about you. You hired an attorney to take you through the claims process and still the insurance company refuses to pay you what would be deemed by any moral standard to be fair. What do you know? The only answer: Welcome to Litigation.
Litigation is the process of pursing your claim against the other driver through the court system. Make no mistake, this is not an easy process nor is it a pleasant one for any of the parties involved. The first step in the process is confirming the facts of the accident, the nature and extent of your medical care and the extent of your monetary losses, including medical bills and lost wages. Once the appropriate defendant has been identified, a lawsuit is prepared on your behalf, and we begin efforts to locate the defendant so we can serve them with the lawsuit.
You are now approximately 60 days into the litigation process. The defendants insurance company hires an attorney to represent the other driver and files an answer with the court essentially denying all of your allegations. At this point, the case is at issue.
Along with filing the answer denying your claims, the defendants attorney will send you written discovery requests. These will consist of requests for disclosure, interrogatories, and request for production of documents.
The disclosures that you will have to answer will apprise the defendant of the exact nature of yours claims, the extent of monetary damages that you are claiming, and all persons whom you believe may testify on your behalf when this case eventually makes it before a jury.
The interrogatories are a series of written questions to you regarding the nature and extent of your claim, the nature and extent of your injuries, your medical history, your previous claims history, and to a certain extent much of your personal history including educational history and any criminal history that you may have.
The request for production of documents is the defendants opportunity to obtain from you any documents you intend to use at the trial of this case, including medical bills, medical records, police reports, photographs and any other written or recorded documents that you have that you think might be helpful in the trial. Of course, the litigation staff here at Bailey & Galyen will assist you every step of the way in responding to all of the defendants written discovery requests. At the same time we will have sent similar requests for discovery to the other driver which they will answer with the assistance of his or her attorney.
You are now approximately 4 months into the litigation process. At this point, some courts will allow us to request a trial date, which will generally be 9-12 months from the date of our request. In most other instances, the court will assign us a trial date at its convenience which, again, will generally be 9-12 months from the time the written discovery has been completed.
During the time leading up to the first trial setting of your case, your attorneys will be busy collecting your medical bills, records and evidence of lost wages in admissible form. You see, we can’t simply show your medical bills to the jury. The medical bills and records have to be verified by affidavit from each one of your doctors. Depending upon how many doctors you have seen, this process could take as long as 6 months and cost between $1500 and $3000.
At the same time, your case manager will be scheduling the depositions of the parties and witnesses in the case. Depositions are a process through which each party can find out what the other party is going to say at trial. You will be side by side with your attorney in one of our conference rooms, in the presence of a court reporter and you will be placed under oath to tell the truth the whole truth and nothing but the truth. You will then be interrogated by the other sides lawyer regarding anything from your past personal history to your current medical care and condition and all the facts and circumstances surrounding not only this accident but any other accidents you may have had in your entire life. You will be prepared for your deposition by your attorney shortly before that your deposition is scheduled. It is a simple yet important process in your lawsuit. Of course, the other driver will also be interrogated at length by your lawyer regarding their version of the accident. Additionally, any other persons who have claimed to have witnessed the accident will also be subject to the same interrogation so that their testimony may be read at the trial of your case.
You are now 8 months or more into the litigation process. You have a trial date sometime in the next 6-12 months. However, before the court will allow you to try your case before a jury, the court will require you to attend mediation. Mediation is simply an informal settlement conference held at the office of another lawyer, known as a mediator. The mediator, while generally appointed by the Judge does not have the power to force the parties into a settlement. The mediator will simply discuss the pros and cons of your case with you in the presence of your lawyer and will see if there is some middle ground between you and the insurance company in terms of settlement. At the end of the day, if the insurance company makes you an offer that you can live with, even though you may not be entirely happy with it, the case will be resolved and there will be no further litigation required. You will be paid in 2-3 weeks following the mediation, and all of your medical bills will be taken care of from the amount of the settlement.
Following an unsuccessful mediation, you will notice a decrease of activity in your case. That is simply because we are now waiting for our assigned trial date. Trials generally start on a Monday but unfortunately, we never know until the Thursday before the Monday trial setting whether or not we will be called to trial. The reason for this uncertainty is because the courts will set 5-10 cases for trial on any given Monday knowing that half of those cases will settle, and some of those cases will not be ready for trial. Generally, the oldest case on the courts docket that is ready for trial is the one that is called. Again, we will not know whether we are called to trial until the Thursday preceding the Monday trial setting.
There is a strong likelihood that you will not be called to trial on your first or even second trial setting. Again, this will seem to you like nothing is happening in your case and you would be correct. We are simply waiting for the next trial setting because all of the work in your case has been done and the case is ready for trial. Once the case is called to trial, your attorney will meet you on the Friday before the trial setting to prepare you to testify. The following Monday you will meet your attorney 30-45 minutes prior to the trial and the trial will begin before the assigned Judge.
Like the litigation process the trial process consists of several parts. First, the Judge and the two attorneys will have a pre-trial conference to discuss the evidence at trial and other matters about procedure. After that, the jurors for your case will be called to your court room and the lawyers will have an opportunity to question potential jurors to seat a jury of either 6 or 12 fair and impartial jurors. Once the jury is seated, normally around lunch time, opening statements are given by each side. Following opening statements, the court takes testimony, including your testimony, about the accident and the nature and extent of your injuries and damages. Often times your doctor will also be called to testify about the nature and extent of your injuries as well as any future medical expenses that you can expect as a result of the accident.
Following such testimony, the defense has an opportunity to present their side through testimony of the defendant and any other witnesses they want to call. Once they have done that, both sides rest and close their case and the courts instructions are read aloud to the jury. The jury then takes the written instructions into the jury room where the jury will deliberate and decide two questions: Were one or both of the parties negligent in causing the accident; and what are the nature and extent of the damages to which the Plaintiff is entitled. If the jury finds that the defendant, the other driver was negligent in causing the accident and awards your money, a judgment will be rendered in your favor for the amount of damages that the jury has found to which you are entitled. The insurance company will finally be required to pay whatever the jury has decided you are entitled to.
As you can see litigation is a very long process. It is a stressful process from beginning to end and it is not a pleasant process for either the plaintiff or the defendant. The bottom line is if you can resolve your case against the other driver and your insurance company for an amount of money that you can live with, even though you don’t think it is fair, it is in your best interest to do so. However, in other circumstances where the insurance company simply refuses to pay you for what you think is reasonable, our litigation attorneys here at the law firm of Bailey & Galyen are ready, willing and able to step up to the plate for you and take your case from start to finish all the way through the litigation process to get you the justice you deserve.
A: Every state has certain time limits, called “statutes of limitations,” which govern the amount of time you have to file a personal injury lawsuit. In some states, you may have as little as one year to file a lawsuit arising out of an automobile accident. If you miss the deadline for filing your case, you may lose your legal right to damages for your injury. Consequently, it is important to talk with a lawyer as soon as you suffer or discover an injury.
One is found in retail stores, office buildings, malls and all types of public facilities. The other is typically found in a restroom at a fast food place, gas station, apartment swimming pool or even at law offices.
When people get hurt in accidents involving these items, typically they are embarrassed and may think itâs their fault or was a freak accident. They usually don’t know it’s an accident pattern that’s happened over and over. As an attorney who has practiced for 30 years, when I see patterns like this, I know I am only seeing a very small percentage of the total similar events.
So what do you think I’m talking about?
Next time you walk into a grocery store, retail outlet or office building keep an eye out for the floor mats. Many businesses use cheap, poorly maintained and worn-out floor mats. They flip up and bunch up and cause trip hazards. Most people who stumble or trip over these mats don’t get hurt, the incident never gets documented or reported, and it’s an uneventful moment. However, there have been thousands of injuries and fractures caused by these mats. One case against a major national grocery store revealed hundreds of reported injury-causing mat claims in just one of their districts in a short period of time. Many lawyers don’t take these cases because of the challenging case law involved in premises liability cases in Texas. But they can be successfully resolved with the right approach.
If you use one of these mats in your own business or where you work, try to get rid of it! There are many mats on the market that are well designed and don’t have the tripping tendencies of the cheap, poorly maintained, worn-out mats. When you walk into a store or business, keep a look out for a bunched up or flipped over mat so that you don’t become another mat statistic!
So what do you think is in a restroom that goes around lacerating folks? How about a wall-mounted sink? We have had multiple cases in which sinks fall off the wall. They hit the concrete floor and basically explode. And when you go down with the sink, sometimes severe or even life-threatening lacerations may follow. So is this a freak accident? Is it your fault because you were leaning or putting pressure on the sink? Nope.
In all likelihood, the sink wasn’t installed correctly. Wall-mounted sinks typically rest on a bracket. The bracket gets stressed over time and starts to give, and at some point in time the sink can pop off the bracket and crash to the ground. These sinks are designed with mounting bolt holes on the underside of the sink to provide additional support. Problem is, in the initial installation of the sinks that fail, the mounting support bolts haven’t been utilized. So, don’t put pressure on wall-mounted sinks. And if you have one in your business, take a look underneath and see if the support bolts were utilized to keep the sink from falling off the bracket.
If you hear about one of these events happening, give us a call. And keep an eye out so you are not a victim. If you see a bad mat or a poorly designed sink installation, bring it to the appropriate person’s attention to prevent someone else’s emergency room trip.
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Two people have died and many others have been hospitalized in a severe accident involving a bus and another car on highway 161 and Belt Line Rd. in Irving, TX. The charter bus, which was on its way to the Choctaw Casino in Durant, OK, hit the highway barrier and flipped over.
It is being reported that several of the injuries are severe and one passenger is undergoing surgery for internal injuries. Eleven people have been transported to Parkland Hospital and eleven others to Baylor Medial Center and are being treated for severe injures. Other passengers on the bus are being treated for minor injuries as well. Many of the 35 to 40 passengers on the bus were tossed throughout the vehicle during the crash. The teenage driver of the other car involved is in stable condition at John Peter Smith Hospital.
The personal injury attorneys at Bailey & Galyen are experienced in handling cases involving public transportation accidents. We will investigate every aspect of the accident to determine who’s at fault and if negligence on the part of the driver or bus company led to the crash. If you or a loved one has been seriously injured or wrongfully killed in a public transportation accident, please email or call the personal injury attorneys at Bailey and Galyen at 1-800-218-6178 to discuss the details of your case. You may be entitled to compensation for injuries, lost wages or pain and suffering due to the loss of a family member.
The problem is that Governor Perry has not driven a car on a city street or highway since December 2000. The Governor has not personally observed texting drivers in action and does not appreciate the aggravation and serious risk these idiots pose to everyone on and near the road. The Governor naively says we need to educate drivers of the dangers of distracted driving, not pass laws to prohibit it. The Governor needs a bit of that education so he can see that education has not worked, and anti-texting law is needed to curb this ever increasingly widespread and dangerous practice. The education he needs, however, is about what is happening on the streets and highways in the real world. Consider these facts from textinganddrivingsafety.com:
Texting While Driving Causes:
1. 1,600,000 accidents per year National Safety Council
2. 330,000 injuries per year Harvard Center for Risk Analysis Study
3. 11 teen deaths EVERY DAY Ins. Institute for Hwy Safety Fatality Facts
4. Nearly 25% of ALL car accidents
Texting While Driving Is:
1. About 6 times more likely to cause an accident than driving intoxicated
2. The same as driving after 4 beers National Hwy Transportation Safety Admin.
3. The number one driving distraction reported by teen drivers
Texting While Driving:
1. Makes you 23X more likely to crash National Hwy Transportation Safety Admin.
2. Is the same as driving blind for 5 seconds at a time VA. Tech Transportation Institute
3. Takes place by 800,000 drivers at any given time across the country
4. Slows your brake reaction speed by 18% Human Factors & Ergonomics Society
5. Leads to a 400% increase with eyes off the road
The Governor uses political friendly quips and buzz words to explain himself, which include education rather than regulation is the solution for the increasingly widespread but dangerous practice, and it’s just another government effort to micromanage behavior of adults. Governor, that’s what lawmaking and laws are and are about. Laws are necessary to change the behavior of Texans so those who need changing do not injury or kill other innocent Texans. Texas already has laws that micromanage behavior of adults in cars and trucks, and here are just a few to remind you:
- Prohibiting drinking alcoholic beverages or having open containers cannot be in a car
- Requiring the use of seat belts
- Prohibiting children under 18 years of age from cannot ride in the back of a pick up on streets and highways
- Speed limit and traffic signs
- Driving a car at night without headlights and/or taillights
- Having to have a current registration and inspection sticker
- Requiring front and rear license plates
Governor, Austin and 23 other cities have banned texting while driving. Additionally, 32 states, including Texas, have prohibited novice drivers from using cell phones, and 10 states prohibit the use of cell phones by all drivers. You approved a law restricting texting in school zones. Your friend, the insurance lobby, wants the law to cut down on liability claims.
Just like your failed bid for the republican presidential nomination, you are not in the majority. Legislators and their constituents want this law. Texas needs laws like this to change bad behavior. If you want to call laws that protect Texans from others’ bad driving behaviors micromanaging adult behavior, so be it. It truly is time for you to get off your high, anti-government horse and do something to protect Texans from distracted drivers. Your current anti-law position is nothing more than an outlaw mentality.
The hype about the medical device tax from the medical device manufacturers is that they will have to lay off employees and shutter their doors. The truth, however, is that they will not have to do either. They will increase device costs, and that will not affect patients one bit.
Skeptical that the device manufacturers won’t follow through on their threats? Consider the February 21, 2013 article by Arezu Sarvestani in the Mass Device Website. The site describes itself as the place for “News and information for the medical device industry and the companies that drive it.” So, if news and information is posted there about the medical device industry, it is reliable.
Sarvestani says in his article that “more than 40% of the medical device makers surveyed say they would raise prices to deal with some or all of the impact or the new 2.3% sales tax compared with only 11% who said they would reduce their staff”. Better yet, he reports that only 1% said they would exit the US market entirely.
The device manufactures go their politics of fear play out of the playbook of one of their biggest fans and supporters, President George W. Bush. They do not enjoy that support with the Obama administration as the later is trying to find real solutions for the economic disaster it inherited.
Bills have been filed in the Texas legislature to create hike and bike trails in utility easements in Houston. Under this bill, the utility companies would donate their easement land to the city of Houston for this use in exchange for immunity from any and all personal injuries. But let’s be clear: The legislature is not talking about immunity from liability from injuries and death caused by the other people using the hike and bike trails.
Why wouldn’t the legislature be concerned about someone being injured or killed in a utility easement by someone other than another user of the easement, you might ask? The answer is found in the easement itself. The high-voltage lines and equipment in these easements are dangerous, and those dangers include but are not limited to adverse health effects from their electromagnetic fields. There has been a lot of discussion in the scientific and medical communities about whether there is an association between these electromagnetic fields and cancer. Whether the risk is established or not, and even if it is inconclusive, why would we want to expose innocent victims to that risk while giving immunity to the power/utility companies who built and maintain those high-voltage lines? The city would build the hike and bike trails directly under these electromagnetic fields, and if it turned out that electromagnetic fields can cause cancer and the utility companies have immunity, who will compensate the innocent victims? What about the innocent men, women and children?
Tort immunity is handed out in the Texas legislature like campaign contributions, free meals, liquor and cigars. The Texas legislature’s liberally handing out immunity is the new tort reform. We now have qualified, limited or full immunity for drug manufacturers for their vaccines, the state and its cities, charitable volunteers, educators and school districts, first responders, emergency rooms, providers of private land for public recreational use, animal control agencies, food donors, transplants and transfusions, fire fighters and police, persons assisting in hazardous or dangerous situations, the use of deadly force in self defense, farm animal activities or livestock shows, donations of medical devices, volunteer health care practitioners who conduct physicals or medical screenings to determine one’s physical health and fitness to participate in a school-sponsored extracurricular or sporting activity, volunteer audiologists or speech-language pathologists, space flight activities, and rendering health care and treatment to the indigent, just to name a few.
Each and every Legislative Session the legislature is lobbied hard by special interest groups for immunity from liability, and when given, accountability only comes when the innocent victim can prove the protected wrongdoer’s act was intentional.
This 83rd Legislative Session is no different. Houston is attempting to obtain immunity for the utility companies who allow the city to build hike and bike trails in their easements, directly under their high voltage lines. That would mean immunity for the power/utility companies who built and maintain those high-voltage lines in the easement for any injury or death caused by electrocution, falling objects, a dangerous condition on the land, or by the users of the easement.
The Texas legislature needs to think about its residents and visitors instead of special interests, for a change. Immunity should rarely not freely - be handed out. Legislators needs to protect their constituents who may well become the innocent and unsuspecting victims of their back-hallway winks, nods and handshakes with the special interests lobby. Whether itâs tort immunity or damages caps, all tort reform hurts innocent victims and only benefits special interests. That is why the Texas Trial Lawyers have opposed these bills in past Legislative Sessions and now; the Texas Trial Lawyers are the only ones in Austin protecting every Texansâ rights to hold wrongdoers accountable.
by Alex Winslow, Local Contributor and Executive Director of Texas Watch Texaswatch.org
While the state is crumbling under a real health care crisis, Gov. Rick Perry and his friends in the special interest lobby continue defending a lobbyist-driven health care battle from a decade ago that has failed Texas patients.
They want you to believe that taking away the legal rights of patients is good medicine. Try as they might, though, there is no disputing the facts:
Texas ranks dead last in the quality of health care, our health care costs are soaring at a rate faster than the national average, we rank near the bottom in the number of doctors who actually see patients, and we have the highest rate of people without health insurance. These are facts, not spin-doctored anecdotes like the ones the governor and his cronies in the insurance lobby like to use.
Back in 2003, politicians and lobbyists made a pack of promises about what they alleged would happen if voters approved a ballot proposition that severely and arbitrarily restricted the legal rights of Texas patients. Among them was that what you spend on health care would go down. Turns out, they lied. Now, they are trying to cover their tracks.
Insurance industry lobbyist John Opelt recently said, "We did not and have not led voters astray."
Really? Numerous political mailers paid for by Opelt's group during the 2003 campaign tell a different story.
One mailer said the ballot initiative would "reduce ... health costs." Another said it would make "health care more affordable and available for all Texans."
All of this comes from a playbook they've been using for decades: Claim there is a crisis of some sort, say that restricting individual legal rights is the solution, promise Texas families and small business owners the moon, and attack anyone who disagrees.
Texans are smart, though. We know when someone is pulling a fast one.
How can it be that eliminating accountability for polluters, careless nursing homes, insurance companies, Wall Street bankers and big drug makers is good for the public? The answer is that it can't be.
Numerous academic studies by independent organizations and legal scholars prove that it is a fallacy to claim that taking away the legal rights of individuals will benefit the public at-large.
Whether we are talking about patients, policyholders or small business owners, we have seen time and again that when lobbyists succeed in stripping or curtailing individual legal rights, the public is harmed.
The only ones who benefit are a narrow group of special interests.
Yet every time one of these proposals comes to the Texas Legislature, the lobbyists claim this will be good for all Texas citizens.
Texans know better. We believe that accountability is good and necessary. This is a basic value we teach our children.
When a person or corporation causes needless harm, they should be held responsible for it. Plain and simple.
When wrongdoers succeed in getting away with the harm they cause, the rest of us are left to pick up the pieces and pay the tab.
Texas faces a host of real-world problems, including a broken health care system. It has been a decade since the governor signed away the rights of Texas patients under the false promise of better, cheaper, and more accessible care.
Sadly, rather than admitting he was wrong, Perry has chosen to be campaigner-in-chief and head lobbyist for the special interests.
Texans deserve real solutions from leaders who understand the importance of personal and corporate responsibility, and who want to find answers to our state's problems that improve the lives of everyday Texans not just a narrow group of powerful interests.