Court allows Drunks to reduce how much they pay

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.

Jury Selection - Really Deselection

You get a letter in the mail and it informs you that you need to be at the courthouse on a certain day and time to serve as a juror. You win!!! Make sure you show up on the right day and on time. It is also a good idea to take a book or something to do while waiting. It is a great thing in our country that we have the chance to serve as a juror and if you have ever been involved in a case it can be down right scary as to how the actual jury which hears the case is determined. First of all it is called jury selection, but that is completely wrong. It is actually jury de-selection. Attorneys get to argue to the Court that certain potential jurors are not suited for this particular case and they can be excused. They also get to strike (get rid of) a certain number of potential jurors just because we don't like a particular answer they gave or attitude even if there is not enough grounds to get rid of them for cause (evidence that they can't be completely fair in this trial). What does that mean -- fair? Not have any bias or prejudice. Not much help huh! The problem is it depends on the each case. A person may be a great juror in one case and terrible in another. If you had been robbed and were called to be a potential juror in a robbery case you might not be able to be unbiased, but in a business dispute it might be fine. What happens when you show up for jury duty? I can give you some information about Fort Bend, Harris, Brazoria, Wharton and other counties in Texas (as well as some other states), but most are fairly alike. You are generally initially selected by driver’s license and/or voters registration. You show up and they ask you to verify the information they have and fill out some more information which will be provided to the attorneys if you make it that far. They first qualify you which means they make sure you still live in the county, are not disqualified (not a felon or medically unable to participate) and do not choose to take a waiver (young children at home, student, etc.) Once you get that done, you wait. As the Courts need jurors they call names out and those people leave and go away?? Where? What happened to them? Is it better that you are still there?? If you are never called you are excused and get to leave. If you are called you are taken to one of the Courts where you will form the jury panel. It could be a criminal or a civil case which you find out when you get to the Court. The attorneys will have had about 5 seconds to review all the information that every potential juror provided as the Court explains a little about the case who the attorneys are and what will happen. Still in the dark, not surprising! At this point the attorneys begin vor dire. They get to ask you questions to see if you are the right person (in their mind) to serve on the jury. What each party really want is every juror to believe them and rule in their favor, but what we hope for is a jury that can be fair. How do we get there? We ask questions which we hope will allow us to learn a little about you to determine who we need to get rid of. We don’t get to select who we like. We get to get rid of some - ask the Court to get rid of some - and the first 6 or 12 (depending on Court) people left after all sides are done make up the jury. So in reality if you are on the jury it is because there was no good reason to get rid of you. I know you really want to know how to improve your chances of not ending up on the jury.
First – Do not just sit there quietly hoping no one will notice you. They won’t which means no reason to strike you and you end up on the jury.
Second – Tell the truth and answer the questions that are asked. If you do that and you end up on the jury it is a good thing and you will appreciate it if you ever have to be in a trial as that is the type of person you would want.
Third - If you are not comfortable with being a juror in that case let the attorneys know why. If it is personal ask to go up to the bench for a private conference with the judge and jury. No one wants a person on the jury who should not be there.
Question I have heard from potential jurors (not about me- I hope.)

Why do lawyers ask such stupid questions? Not a clue. Sometimes they have a reason for a question that doesn’t make sense at the time, sometimes it is just stupid.

Why do they argue with me about my answer? I really don’t know. Not only is it not smart, but it doesn’t get you any useful information. If I don’t agree with an answer a juror gives, I just make a note of it and move on.

Why won’t they answer my questions about… insurance, police report, etc. There are specific rules as to what attorneys are allowed to discuss and what we can’t. In an injury case we are not allowed to discuss anything about insurance, whether it exists (auto or health) what discussions, if any went on, etc. The police report and what they found may or may not come in depending on several issues. So if a lawyer will not answer you or avoids the question, it is probably because he is not allowed to discuss it.

Finally, don’t try to get off a jury panel. It may backfire. I have had jurors flat out lie and everyone knew it. Had an astronaut claim he wasn’t one and just an engineer. Everyone in the courtroom knew him and that he was an astronaut, but he kept swearing he wasn’t. The court called the lawyers up and said he didn’t know why he would lie, he was going to excuse him but also had lost all respect for him. We saw him the next morning on TV doing an interview. I also had a man claim he was a welder, but had a manicure and didn’t know much about the ins and outs of welding. Turns out he owned several welding companies and wanted to get on the jury to “stop the crazy verdicts”. He was struck. But how do you think he would have felt if his company was sued and a juror lied to get on to “make sure he lost”. He would be rightfully furious, but saw nothing wrong in his actions. I have also heard of jurors getting off a panel which would have been only a 1-2 day trial only to end up on a month long murder case. So tell the truth and generally it will all work out as it should. Hope this helps in jury de-selection understanding. If you have any other questions, about jury selection let me know. Next time we will talk about things that happen in trial.

Let me know your experiences with jury duty or jury selection?

Jury Duty

Jury duty can be a pain. You have to go down to the courthouse, verify your paperwork and then sit around for hours waiting to be called (and hoping you're not). If you are called you get herded over to some courtroom where you are asked a bunch of questions about yourself and your beliefs (you try to keep a low profile so no one asks you questions) and then hopefully you will be excused and not have to serve. Sound familiar? A couple of friends (non lawyers) and I discussed this very topic this morning. They were upset with the amount of wasted time in the process and in some cases the attitude of the lawyers. I have been on the other side where we have waited for days to get a jury panel because not enough people showed up to serve. How can we make the process more streamlined, more pleasant and enjoyable? If you have gone to jury duty post a comment and let me know your experience good, bad or indifferent and any suggestions you have to make it better.