Arbitration

Arbitration – “till death do you part” may apply in marriage, but does not apply in arbitration. On February 13, 2009 our Texas Supreme Court issued an opinion (In Re Labatt Food Service, L.P. – No. 07-0419)which held that an arbitration provision in an agreement between a person who died on the job and his employer was binding upon his heirs even though they did not sign the agreement. The court concluded that the arbitration clause was binding and the decision as to whether even the agreement itself was enforceable would have to be decided by the arbitrator. The original concept of arbitration was one of cost savings in terms of reducing the expense of lawyers, discovery and time to get an issue resolved. It has instead proven to be as, if not more expensive and take longer than litigation without any of the safeguards built into our civil justice system. I am a firm opponent to arbitration and have huge concerns regarding the uneven playing field before a single arbitrator or panel that is selected by the parties. One concern is the appearance of bias when one party regularly appears before the arbitrator and the other has only one case. Also the decision of the arbitrator is generally final without recourse or appeal, whereas in trial you present your case to a jury from your jurisdiction. That jury’s decision is based upon the law as administered by the Court and if warranted either side can appeal the decision. My advice is not to agree to arbitration. If arbitration language is included in an agreement strike it out before signing and if the other side insists on the arbitration language you have to decide if it is worth the loss of your rights under our justice system. Also ask yourself if they want arbitration so bad, they must have a reason to believe it will benefit them and not provide an equal playing field. The time to deal with an arbitration clause is before you sign the agreement because, as our Supreme Court has held, even death can’t get you out of them once it has been signed. As always I welcome your comments.

Trials Part 1

As you may have noticed from the in trial this week, I am in trial. One issue which has come up in this trial and virtually every trial which concerns personal injuries is the use of affidavits to prove up medical records and billing. While it is specifically allowed under 18.001, the affidavit must track the language as set out, if not you may not get your bills or records into evidence. We have noticed that several hospitals and doctors instead of returning the affidavit we send filled out, they choose to either send their own or change the language. This could result in the affidavit being found defective and the your evidence excluded. So the moral of the story is once you get your affidavits back and make sure you read them to determine they are correct. Give yourself plenty of time to get them corrected before the filing deadlines. All our medical was admitted, but some of the bills were initially incorrect, but my co-counsel Sharon Steckler had them redo in the correct form and did so in plenty of time to get them filed timely. If you have questions or comments, let me know.

Uninsured/Underinsured Auto Coverage - Part 2

Uninsured or Underinsured claims, in addition to what we discussed last week, have some other issues which can be become problems. One of them could prevent you from recovering under your own policy, despite all the money you have paid in over the years. You must get written permission to settle and release the other driver from your carrier before you settle your case. To illustrate this let's take a basic rear end collision. You are hit from behind by a driver insured with DenyAll Insurance and your insurance is Regressive. The other drive is ticketed for the wreck and your medical expenses are over $35,000.00. The other driver's coverage through DenyAll is only $25,000.00. They provide proof of the policy only being $25,000.00 and send you a check and release to sign. Putting aside all the issues with medical bills, etc., you sign the release and take the money. You may have just cut off any recovery you may have against your own company to recover your additional damages because you did not get their written permission to settle and release the other driver. The real kicker is that there is no requirement that your insurance company tell you about the requirement. The moral of the example is what should be simple is filled with traps and before you settle any case, make sure you know who it could impact other issues. As with any legal discussion, this is just general information and not specific legal advice for any case.

Uninsured/Underinsured Auto Coverage

Did you know that the auto insurance that you have paid for all these years can refuse to pay even if it is clear that you were injured through no fault of your own? Let me give you an example. You are stopped at a light and a drunk hits you. You go to the hospital and everyone knows you are seriously injured. The drunk is arrested and taken to jail for causing the wreck and your medical bills are increasing daily. You learn that the drunk has no insurance, so you make a claim on your insurance under the uninsured portion of your policy. That is why you have been making those payments all these years. You submit all your bills and even send them the police report. You then get a letter stating that they do not have to pay anything until the drunk is found liable and the damages are established. Your medical is now over $40,000.00 and your uninsured coverage is only $50,000.00 clearly they will pay it and not make you hire a lawyer and file a lawsuit right. Wrong. The Texas Supreme Court has expressly permitted this very action and the insurance companies are taking full advantage of it. You may now have to hire a lawyer, file a lawsuit and incur all the cost of filing fees, depositions, etc. to "prove" the drunk was at fault and what your damages are, and once you do all that and get a verdict, you would think you would get the policy limits ($50k in our example), plus your expenses and attorneys fees because you paid those premiums to get treated fairly, but that is not the case. In our example, let's say the jury finds the drunk at fault and awards $150,000.00. The Supreme Court has held that if the policy limits are tendered timely (within 5 days) of the judgment, all they owe is the policy ($50k), no attorneys fees or expenses. So why would an insurance company ever settle an uninsured case for the full value when they know they can make you spend time and money and ultimately will get less. If you think this is wrong, you are right. Let me know your thoughts.