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.
Tuesday, July 12, 2011
Thursday, July 7, 2011
TWIA Wins Texans Lose
Our Texas governor determined that an emergency session was necessary to get legislation passed which limits the amount of damages TWIA will have to pay. The main arguments they made to take away Texas citizens’ rights were:
first — the insurance company needed to be able quantify how much they would owe and they couldn’t do that under the current laws second – to keep premiums affordable.
The problem is the first issue (while true) is not a legitimate reason to take people’s right to recover their damages. If TWIA would have done the job they were supposed to do they would have been able to quantify how much they would have owed for claims. The problem is they denied legitimate claims which resulted in their policy holders having to file suit to recover the damages they were legally entitled to recover. That included recovering the damages for attorney fees and damages to punish them for their misdeeds. Those damages and fees were required by law when the company violated their duty to their policy holders.
So what do our current elected officials do to correct this violation of public trust and dishonesty by the TWIA? They protect them from legitimate claims by limiting their exposure, in effect they told them — we know you lied, cheated and stole from your policy holders, but we want to make sure that you are protected from having to pay for the mess you caused.
The only time people hire a lawyer is to help them with an insurance claim is when the company isn’t doing what they should. So your insurance company is not taking care of your claim (the claim your premiums have been paid to handle) you have to hire an attorney, you prove your case, and recover damages.
Now because of this “emergency” legislation, the damages the jury determined to be fair might be reduced. The only cases it will impact are the legitimate cases – it like all the other “tort reform” legislation has absolutely no impact on the so called frivolous cases.
The second claimed reason to keep premiums affordable is laughable.
The governor signed his “emergency” legislation and less than 24 hours the TWIA raised premiums 5% for its policy holder which is the maximum allowed. So the TWIA now has been able to limit their exposure for their own misdeeds, which increases their profits and at the same time have raised the premiums their policy holders have to pay increasing the profits even more.
Hopefully all those who determined this was an emergency have been properly rewarded for their work for TWIA.
It is unfortunate that the individual policy holders who have been and will be impacted by this legislation did not have a lobbyist, but they do have a vote and hopefully will remember how you treated their concerns and rights.
first — the insurance company needed to be able quantify how much they would owe and they couldn’t do that under the current laws second – to keep premiums affordable.
The problem is the first issue (while true) is not a legitimate reason to take people’s right to recover their damages. If TWIA would have done the job they were supposed to do they would have been able to quantify how much they would have owed for claims. The problem is they denied legitimate claims which resulted in their policy holders having to file suit to recover the damages they were legally entitled to recover. That included recovering the damages for attorney fees and damages to punish them for their misdeeds. Those damages and fees were required by law when the company violated their duty to their policy holders.
So what do our current elected officials do to correct this violation of public trust and dishonesty by the TWIA? They protect them from legitimate claims by limiting their exposure, in effect they told them — we know you lied, cheated and stole from your policy holders, but we want to make sure that you are protected from having to pay for the mess you caused.
The only time people hire a lawyer is to help them with an insurance claim is when the company isn’t doing what they should. So your insurance company is not taking care of your claim (the claim your premiums have been paid to handle) you have to hire an attorney, you prove your case, and recover damages.
Now because of this “emergency” legislation, the damages the jury determined to be fair might be reduced. The only cases it will impact are the legitimate cases – it like all the other “tort reform” legislation has absolutely no impact on the so called frivolous cases.
The second claimed reason to keep premiums affordable is laughable.
The governor signed his “emergency” legislation and less than 24 hours the TWIA raised premiums 5% for its policy holder which is the maximum allowed. So the TWIA now has been able to limit their exposure for their own misdeeds, which increases their profits and at the same time have raised the premiums their policy holders have to pay increasing the profits even more.
Hopefully all those who determined this was an emergency have been properly rewarded for their work for TWIA.
It is unfortunate that the individual policy holders who have been and will be impacted by this legislation did not have a lobbyist, but they do have a vote and hopefully will remember how you treated their concerns and rights.
Wednesday, February 16, 2011
Jury Duty
When I was kicking around blog topics with different people, I was provided with several great topics. The one which gets today’s effort is jury duty. Why you ask, did jury duty rise to the top of all the other topics? That is easy. A Judge suggested I should write about jury duty. Judge wins. Jury duty is it.
Jury duty is really an honor and privilege that we have. Yet it is constantly being attacked. You have no doubt heard the arguments about how a “crazy jury” awarded x amount of money on some case. But never do you hear from the actual jurors who heard the evidence and came up with their verdict. I am a firm believer in the jury system and have found they usually end up doing the right thing. Understand this is from one of those rare lawyers who has actually won and (gasp!!) lost cases at trial. Based upon the ads I see and talk around the Courthouse, I may be one of only a handful of lawyers in the Fort Bend, Brazoria, Harris, Galveston, Matagorda, Waller, (or for that matter all of Texas and the U.S.) to have ever lost a case. It is also strange that some people believe that juries should be done away with completely in personal injury cases where a person’s livelihood is on the line, but firmly believe in juries deciding whether a person should spend the rest of their lives in jail or be executed. Maybe it’s just me but I believe a jury panel which could decide if I live or die is capable of deciding if the person that hurt me in a wreck should pay for my damages.
So—let’s talk about jury duty.
Why did I get this notice (summons) and what am I supposed (have) to do?
State law sets the process for selecting potential jurors. In Texas, each county gets a list from the State of people who are registered to vote, have a Texas driver’s license or a Texas identification card. You do not need any special skills or legal knowledge. People are then chosen randomly from that list. You may or may not get additional information with the summons such as a questionnaire requesting some basic information to fill out and bring with you or mail back ahead of time. Some counties have I-Jury Online Impaneling (it is the selection process – not being made part of a wall) and if your county has that you can respond on line and potentially save yourself a trip to the Courthouse.
What if I just don’t answer summons?
Bad idea. You can be subject to a contempt action that can result in a fine of not less than $100.00 or more than $1,000.00. (Texas Gov’t Code – 62.0141)
Ok. Got the summons and I will show up. Does that mean I will be on a jury?
No. There are still several things which have to be determined to see if you are qualified to serve as a juror. The first step outlined above gets you in the selection hopper; the following are REQUIRED to qualify you as a juror.
1. Must be at least 18 years of age;
2. Be a citizen of Texas and of the County in which you are to serve as a juror;
3. Must be qualified to vote in County in which you are to serve as a juror, you do not need to be registered, just qualified (you could legally vote if you wanted);
4. Be of sound mind and good moral character;
5. Be able to read and write;
6. Not have served as a juror for six days during the preceding 3 months in County Court or during the preceding 6 months in District Court;
7. Not have been convicted of, be under indictment or other legal accusation for, misdemeanor theft or a felony.
If you meet all the above requirements, you are qualified to serve as a juror, but there are some exemptions which you may claim. You may choose to serve even if any of the following apply, but you are not required to:
1. Over the age of 70;
2. Have legal custody of a child younger than 10 and serving on the jury would leave the child without adequate supervision;
3. Are a student at a public or private secondary school;
4. Are enrolled and in actual attendance at an institution of higher learning;
5. Are an officer or an employee of the senate, house of representatives, or any department, commission, board, office or other agency in the legislative branch of government;
6. Have served as a petit juror in the county during the 24 month period preceding the date you are required to appear for this summons. (Only if county has at least a population of 200,000)
7. Are the primary caretaker of a person who is an invalid and unable to care for himself (does not apply to healthcare workers); or
8. Have been summoned for service in a county with a population of at least 250,000 and you have served as a petit juror in the county during the 3 year period preceding the date you are to appear for jury service.
Jury Selection:
If you made it through the qualification process and have no exemptions (or have chosen not to take them) that still does not mean you will actually serve on a jury, but you will be able to be on a jury panel from which the actual jury will be selected. The selection process is usually a day or less, but in some rare cases can take several days. You and your fellow panel members will be taken to a courtroom where the judge, lawyers and parties will be able to ask questions to determine if you are the proper person to serve as a juror in that particular case.
Juror Oath:
At some point in the process all prospective jurors are given an oath in which they swear or affirm to tell the truth when answering questions. If there is a question which you would be embarrassed to answer or is extremely private, you can ask to go up the judge to give your answer, but you need to answer it truthfully. I usually ask jurors if they would want someone like them being on a jury which was judging a case where they were the party. Not answering questions truthfully and completely generally can not only be grounds for contempt, but may actually get you on the jury. I realize that some people try to get out of jury duty by lying. You don’t have to lie. Tell them the Judge and lawyers the truth and you will probably scare them enough to not select you.
Jury:
Make it through the process and are selected to be on the actual jury. Don’t be upset. You should be proud that you were one of only a handful of citizens who were chosen out of the entire county to be able to decide a case which will impact the lives of all those involved. Thank you for taking your responsibility and duty seriously.
Jury duty is really an honor and privilege that we have. Yet it is constantly being attacked. You have no doubt heard the arguments about how a “crazy jury” awarded x amount of money on some case. But never do you hear from the actual jurors who heard the evidence and came up with their verdict. I am a firm believer in the jury system and have found they usually end up doing the right thing. Understand this is from one of those rare lawyers who has actually won and (gasp!!) lost cases at trial. Based upon the ads I see and talk around the Courthouse, I may be one of only a handful of lawyers in the Fort Bend, Brazoria, Harris, Galveston, Matagorda, Waller, (or for that matter all of Texas and the U.S.) to have ever lost a case. It is also strange that some people believe that juries should be done away with completely in personal injury cases where a person’s livelihood is on the line, but firmly believe in juries deciding whether a person should spend the rest of their lives in jail or be executed. Maybe it’s just me but I believe a jury panel which could decide if I live or die is capable of deciding if the person that hurt me in a wreck should pay for my damages.
So—let’s talk about jury duty.
Why did I get this notice (summons) and what am I supposed (have) to do?
State law sets the process for selecting potential jurors. In Texas, each county gets a list from the State of people who are registered to vote, have a Texas driver’s license or a Texas identification card. You do not need any special skills or legal knowledge. People are then chosen randomly from that list. You may or may not get additional information with the summons such as a questionnaire requesting some basic information to fill out and bring with you or mail back ahead of time. Some counties have I-Jury Online Impaneling (it is the selection process – not being made part of a wall) and if your county has that you can respond on line and potentially save yourself a trip to the Courthouse.
What if I just don’t answer summons?
Bad idea. You can be subject to a contempt action that can result in a fine of not less than $100.00 or more than $1,000.00. (Texas Gov’t Code – 62.0141)
Ok. Got the summons and I will show up. Does that mean I will be on a jury?
No. There are still several things which have to be determined to see if you are qualified to serve as a juror. The first step outlined above gets you in the selection hopper; the following are REQUIRED to qualify you as a juror.
1. Must be at least 18 years of age;
2. Be a citizen of Texas and of the County in which you are to serve as a juror;
3. Must be qualified to vote in County in which you are to serve as a juror, you do not need to be registered, just qualified (you could legally vote if you wanted);
4. Be of sound mind and good moral character;
5. Be able to read and write;
6. Not have served as a juror for six days during the preceding 3 months in County Court or during the preceding 6 months in District Court;
7. Not have been convicted of, be under indictment or other legal accusation for, misdemeanor theft or a felony.
If you meet all the above requirements, you are qualified to serve as a juror, but there are some exemptions which you may claim. You may choose to serve even if any of the following apply, but you are not required to:
1. Over the age of 70;
2. Have legal custody of a child younger than 10 and serving on the jury would leave the child without adequate supervision;
3. Are a student at a public or private secondary school;
4. Are enrolled and in actual attendance at an institution of higher learning;
5. Are an officer or an employee of the senate, house of representatives, or any department, commission, board, office or other agency in the legislative branch of government;
6. Have served as a petit juror in the county during the 24 month period preceding the date you are required to appear for this summons. (Only if county has at least a population of 200,000)
7. Are the primary caretaker of a person who is an invalid and unable to care for himself (does not apply to healthcare workers); or
8. Have been summoned for service in a county with a population of at least 250,000 and you have served as a petit juror in the county during the 3 year period preceding the date you are to appear for jury service.
Jury Selection:
If you made it through the qualification process and have no exemptions (or have chosen not to take them) that still does not mean you will actually serve on a jury, but you will be able to be on a jury panel from which the actual jury will be selected. The selection process is usually a day or less, but in some rare cases can take several days. You and your fellow panel members will be taken to a courtroom where the judge, lawyers and parties will be able to ask questions to determine if you are the proper person to serve as a juror in that particular case.
Juror Oath:
At some point in the process all prospective jurors are given an oath in which they swear or affirm to tell the truth when answering questions. If there is a question which you would be embarrassed to answer or is extremely private, you can ask to go up the judge to give your answer, but you need to answer it truthfully. I usually ask jurors if they would want someone like them being on a jury which was judging a case where they were the party. Not answering questions truthfully and completely generally can not only be grounds for contempt, but may actually get you on the jury. I realize that some people try to get out of jury duty by lying. You don’t have to lie. Tell them the Judge and lawyers the truth and you will probably scare them enough to not select you.
Jury:
Make it through the process and are selected to be on the actual jury. Don’t be upset. You should be proud that you were one of only a handful of citizens who were chosen out of the entire county to be able to decide a case which will impact the lives of all those involved. Thank you for taking your responsibility and duty seriously.
Wednesday, January 19, 2011
Veterans Benefits
Carpenter & Carpenter is proud to announce that Brent Carpenter has received his accreditation from the Department of Veterans Affairs, Office of General Counsel as an attorney for the preparation, presentation and prosecution of claims for veterans benefits before the VA. It is a shame that our country does not take care of our veterans without forcing them to go through a battlefield of regulations. They already went through a real battlefield which is why they need the benefits.
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