A Tarrant County jury found her damages to be more than $110,000 after interest and court costs.  Our Texas lady will recover more than her $50,000 underinsured policy that she purchased.   Her medical bills exceeded $30,000, but the Texas Supreme Court recently changed over 100 years of Texas law and legislated that current medical bill law is no longer the law and Texas juries cannot hear the true medical bills.  The new law only allowed the jury to hear about $12,000 in medical bills.
The Texas Supreme Court has recently overturned several jury verdicts allowing Corporations and insurance companies to deny coverage, avoid damages, and payments to Texans.  Why the “conservative” court is re-writing Texas law and legislating from the Court is unknown, but insurance company donations in recent years are suspected to be an issue.

Texas law is being thrown out, ignored, and discarded at an unprecedented rate by the Supreme Court to favor insurance companies and big business to the harm of Texans.  Texas is truly open for business- is it really for the best for Texans?

case law, Vioxx, Escabedo,

J. Patrick Gallagher, III

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Patrick Gallagher has the distinct honor of being chosen as one of the top 5% of practicing attorneys in the state of Texas for 2011.

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By Deanna Boyd

dboyd@star-telegram.com

FORT WORTH — For 51/2 hours on a hot summer night in 2005, Michael Miles sat in the Harlem Nites Cabaret and drank.

Throughout the evening, attorneys say, bartenders at the topless bar continued to serve Miles, a 47-year-old father of three who lived in Arlington, until he was obviously drunk.

After leaving the bar, Miles went to a convenience store and eventually began driving his pickup the wrong way on U.S. 287 before merging onto East Loop 820 South — still going the wrong way.

About 1:35 a.m., Miles’ pickup crashed into a car filled with teenagers from Dunbar and Wyatt high schools.

Jeffrey Muriel Jr., Donald Cain Jr., Charles Tate Jr., all 19, and Carl Field, 14, were killed in the Aug. 7, 2005, wreck.

Miles, who police said had a 0.22 blood-alcohol level, died at a hospital.

On Monday, a Tarrant County civil jury found that F & F Land Co., doing business as Harlem Nites Cabaret, was negligent in overserving Miles. The jury found that the bar, at 9317 South Freeway, was 35 percent responsible for the deadly wreck, with the remaining 65 percent attributed to Miles.

Jurors awarded $4.3 million in damages to the survivors of the four teens; the bar is responsible for about $1.6 million.

“Absolutely there’s individual responsibility — he’s got 65 percent of this loss,” said Bob Haslam, one of four attorneys involved in the lawsuit. “But at the same time, a guy makes money off this loss. That’s the only reason Harlem Nites — topless bars — are there is to make money on alcohol sales.

“No one is saying people can’t go to a bar and get drunk, but if you’re going to make money on the guy, send him home in a cab.”

The lawsuit was filed in 2006 under the state’s Dram Shop Act, which allows those who sell alcohol to an obviously intoxicated person to be held liable for resulting damages.

The jury also found that the bar’s owners, Harry Floyd Freeman and John David Faltynski, are individually liable in the case and that they ran the company as a sham to perpetrate a fraud.

Freeman died in July 2010 at age 72.

Frank Cram, the owners’ attorney said, “We intend to appeal, and we feel confident we’ll be successful in appeal.”

Haslam said that none of the bar’s employees were certified by the Texas Alcoholic Beverage Commission and that the bar did not have insurance.

“These guys are so cheap and so greedy, they don’t even buy insurance to protect the public,” Haslam said.

Haslam said that while employees claim they never saw Miles at the bar that night, debit transactions show that he withdrew $160 from the bar’s ATM between 5:30 and 10:50 p.m. Video surveillance showed Miles entering a nearby convenience store after leaving the bar to buy a cup of coffee and cigarettes and withdraw $25, Haslam said.

The bar’s attorneys had contended that Miles went drinking elsewhere between going to the convenience store and causing the crash, which occurred 21/2 hours later.

Cram said a Heineken can — Miles’ beer of choice — was found at the scene of the wreck.

“We don’t know where he went to drink,” Cram said. “When you look at the video, he just doesn’t look intoxicated in the video.”

Haslam said the amount of cash found on Miles after the wreck indicated that he had not gone anywhere else. Haslam theorizes that Miles may have slept in his pickup during the time gap.

Police have said Miles seemed oblivious to oncoming traffic as he drove the wrong way on two freeways for an estimated five miles, narrowly missing several other cars before hitting Muriel’s 1991 Chevrolet Caprice.

Muriel and Cain were former Dunbar High School students. Tate, the father of an infant daughter, and Field had been students at Wyatt High School.

Haslam said relatives are happy that the trial, which had been delayed numerous times, is finally over and hope that the verdict sends a message.

“They’re happy the jury said, ‘Alcohol dealers — drug dealers — you’re partly responsible for this,’” Haslam said. “Bars need to be responsible. The state passed this law for a reason, even though it’s hard to find a bar liable.”

Deanna Boyd, 817-390-7655

Special to the Star-Telegram

Gov. Rick Perry’s proposals for Texas’ legal system would help his insurance company contributors further increase their profits on the backs of those least able to help themselves after being injured by others’ negligence — and limit the already small recoveries available to plaintiffs in Texas.

Perry recently called for lawsuit “losers” to pay their opponents’ legal expenses and for an “early dismissal” option to get rid of “frivolous” suits. He said these components would help the state’s legal and economic climate.

But if the governor believes that Texas needs an early-dismissal option and expedited trials with limited discovery for claims between $10,000 and $100,000, he is not familiar with our court system. We’ve had both for years.

Rule 190 of the Texas Rules of Civil Procedure covers expedited trials. We already have three levels of cases to expedite things. Should we spend more money to add more layers?

Defending cases between $10,000 and $100,000 in Texas now costs very little. Many are defended by salaried insurance company employees with nominal costs to the company. Many are handled on fixed fees, some for as little as $2,000-$3,000 for the entire case.

In Tarrant County, cases involving $10,000 to $100,000 go to County Courts at Law and can get a trial setting in less than a year. The judges should be commended for moving cases fairly and efficiently.

Insurance companies and defendants want attorney fees awarded for frivolous claims by injured people. No problem. But fairness goes both ways: How about attorney fees awarded to the injured for frivolous, fraudulent or false defenses? Insurance lawyers routinely file defenses and make claims that can never be proved. Defendants waste too much time in litigation by stalling, delaying and making frivolous defenses. Insurance defendants and corporate defendants should pay attorney fees to the injured person so the playing field is level for both sides.

Again the governor misleads Texans or doesn’t know the rules.

Texas already has an “offer of settlement” rule, Civil Practice and Remedies Code Chapter 42, which provides for attorney fees. This rule is one-sided because the insurance company or defendant must invoke the rule. It has some fairness because it allows the plaintiff to make a counter-proposal to the insurance company’s usually low offer. The rule is rarely invoked: I haven’t seen it in one of my cases in 10 years.

Perry wants to make it more one-sided, kind of like going to a fight and making the injured person tie one hand behind his back. That is not fair, and that is not what Texas stands for.

Another proposal discusses the feared cliche of a frivolous lawsuit. Insurance companies and defendants already receive protection from frivolous lawsuits under Rules 13 and 169a, and Chapters 9 and 10 of the Civil Practice and Remedies Code.

Truly frivolous cases rarely make it to trial. My experience tells me that no “frivolous” case in the past 10 years has made it past a Texas trial judge or reached a judgment where the frivolous case won anything.

The majority of Republican judges in Texas do not believe that there is a problem with frivolous cases.

The government already has the ability to appeal cases before trial to try to get them dismissed. This actually leads to delays and runs up costs to the injured person. As taxpayers pay the government lawyers’ salaries, this delay isn’t a problem for the government; it’s the consumer who faces years of waste on preliminary appeals.

Say “No” to more tort reform and “Yes” to deficit reduction/better education. Texans have been hurt enough by insurance company greed. Let’s focus on education so we can understand the Rules of Court.

Robert “Bob” Haslam of Fort Worth is past president of the Tarrant County Trial Lawyers Association.

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Patrick Gallagher was selected by Super Lawyer for successfully representing clients seriously injured by dangerous products against manufactures in product liability lawsuits

The number of drivers involved in fatal accidents who were eating, talking on a phone or otherwise distracted rose 42% from 2005 to 2008. But that’s just one way to read a new study of highway deaths.

Another way is that “inattentive” or distracted driving was recorded as a “primary” factor for just 7% of the 50,430 drivers involved in fatal accidents in 2008. The broader trend was that the number of total road fatalities dropped in 2009 to 33,963, down 22% from 43,510 in 2005. That’s the fastest rate of decline in traffic deaths in peacetime since the dawn of automotive mass production in 1913.

At MIT’s AgeLab, researchers are focused on getting to know who’s behind the wheel in their quest to build a safer car. They’re studying the physical responses of drivers to figure out just how much they can handle while driving. WSJ’s Beckey Bright reports.

The dramatic decline in highway fatalities in the U.S. since 2005 is a piece of good news that’s also a bit of a mystery. Is it the result of better vehicle safety technology? Less stupid, reckless behavior? Smarter strategies for easing teens into the responsibilities of driving? Or just an unexpected positive side effect of a slumping economy?

A new study by two University of Michigan researchers of detailed federal crash statistics from 2005 to 2008 suggests all these reasons could be behind the reduced death toll.

Consider distracted driving. The dangers of texting or talking on a phone while driving have received a lot of attention, including from Transportation Secretary Ray LaHood. Mr. LaHood has been relentless on the issue, suggesting that he would seriously consider banning all cellphone use in automobiles, including hands-free systems. That’s rattled car makers, who have used sophisticated hands-free telecommunications technology as a selling point in many new vehicles.

The federal highway fatality data analyzed by University of Michigan Transportation Research Institute researchers Michael Sivak and Brandon Schoettle suggest that talking and texting behind the wheel are a smaller problem than, for instance, motorcycle deaths.

Messrs. Sivak and Schoettle found that in 2005, 2,369 fatal accidents were blamed on “inattentive” driving–including eating, talking or using a phone. By 2008, inattentive driving was blamed for 3,366 deadly crashes.

By comparison, the number of fatalities involving motorcycles grew by 14% to 5,129 deaths in 2008 from 4,492 in 2005. The researchers noted this trend is consistent with rising motorcycle ownership among “middle-aged men with little or no prior experience.”

A Transportation Department spokeswoman said, in an email Tuesday, that a broader definition of distraction-related fatalities grew to 16% of all traffic deaths in 2008 from 10% in 2005. The rate leveled off in 2009, around the time of Mr. LaHood’s national campaign against distracted driving and enactment of tougher state laws on texting and phoning while driving, she wrote.

The department also is pushing to curb drunk driving and promote seat-belt use and new vehicle safety technology, the spokeswoman wrote. This week it launched a new effort called “No Refusal” that encourages police officers to call judges who will quickly authorize warrants to obtain blood samples from people who refuse a breath-alcohol test in an effort to avoid prosecution.

Mr. Sivak says that when he looks at the causes of crashes, he zeroes in on alcohol. “That is the biggie,” he says.

Alcohol and speed, he says, explain why so many people die on the highway alone, without hitting another car. Out of 34,017 total accidents in 2008 ascribed in federal data to a collision, about 62%—just over 21,000—involved a single-vehicle crash. Such deadly wrecks declined by 9% between 2005 and 2008, less than the 13% decline in deadly collisions overall.

So what’s helping to reduce deaths? Technology deserves some credit, according to the data. Deaths in side-impact crashes declined between 2005 and 2008 at a faster rate than the decline for deaths overall. That suggests that side airbags are helping more people survive crashes, the researchers found.

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Getty ImagesThe broader trend was that the number of total road fatalities dropped in 2009 to 33,963, down 22% from 43,510 in 2005.

The Michigan study found a nearly 20% decline in deaths among young drivers, age 16 to 25. Among the possible reasons: the increasing number of states that use graduated licensing programs that delay granting full driving privileges until teens have more experience, and rising teen joblessness.

The exact role of the economy in declining highway deaths is a big unknown. Messrs. Sivak and Schoettle highlight pieces of data that suggest that as the economy slowed down, so did motorists.

The number of deadly accidents in which there was no evidence that the driver swerved to avoid the crash, an indicator of excess speed, dropped by more than 20% between 2005 and 2008, according to federal data. (The number of such crashes is still quite high—nearly 23,000 in all for 2008.)

“The slower the speed, the more likely an avoidance maneuver is possible,” the researchers wrote.

Fatal accidents during rush hours also declined more sharply than overall deaths. The 6 a.m. to 9 a.m. morning rush claimed 3,236 lives nationwide in 2008, down 16.7% from 2005. Deaths between 3 p.m. and 6 p.m. fell by nearly 18%. The deadliest hours on the road? The period between 6 p.m. and 8:59 p.m. —still the rush hour in many cities. In 2008, 5,342 people died in crashes during those hours, down 13.1% from 2005.

What happens when the economy rebounds? Fatalities and injuries have tended to drop during economic slowdowns, but when the economy recovers, they have not rebounded all the way to pre-recession levels, the Transportation Department says.

Mr. Sivak says he expects deaths will climb. “There are no magic solutions here,” he says.

Write to Joseph B. White at joseph.white@wsj.com

Posted Wednesday, Nov. 03, 2010

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