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Often in injury litigation, the defense will ask for what they like to call an “Independent Medical Examination”. The defense has a right in most instances to have the Plaintiff examined by a doctor of the defenses choosing. However, don’t believe for one minute that they have chosen a truly “independent” doctor. We routinely see the insurance companies hire the same doctors over and over to perform these exams. Of course, they are likely to hire doctors who are very conservative and will minimize the effects of your injury or attempt to say that the injury is not from the crash/fall/incident that is the subject of the suit. Call these exams what they are: “Defense Medical Exams”.
Personal Injury Protection” or “PIP” coverage is an optional first-party coverage that many auto policies issued in Texas provide. PIP covers medical expenses and lost wages caused by the auto collision. PIP is a “1st party” coverage, meaning it is on your policy, not the other driver’s insurance.
-PIP is optional. If you want it, you have to buy it. Insurers are required to offer it to you at the time of sale and must get your rejection in writing if you don’t want it.
-PIP covers the driver and all passengers, REGARDLESS OF FAULT.
-PIP policy amounts can vary. The minimum amount that can be sold in Texas is $2500 per person.
If you purchased “full coverage” on your own auto insurance policy, you may have a coverage called “Medical Payments” or MedPay”. Medpay works similiar to PIP coverage (see my earlier post) in that it pays for medical expenses incurred from a wreck REGARDLESS OF WHO WAS AT FAULT. The big difference with MedPay is that it likely has “subrogation rights”, which means that if you recover the medical expenses from the at-fault driver, you must reimburse the MedPay insurance company.
I recommend you buy PIP instead of MedPay if given the option.
Gregg Oberg
Tractor trailer drivers are professionals who must follow a distinct set of rules and regulations regarding their driving. There are regulations regarding the qualifications, screening and training companies must follow where hiring a truck driver. This is to be expected, as a tractor-trailer combination can weigh over 80,000 pounds at cause severe and disabling injuries, or even death if involved in a crash. The greater mass and momentum of the truck increases the danger to all other drivers should a truck driver violate the safety rules which are in place to protect us all from harm.
What Are Some Of The Dangers Of Driving Around Large Tractor-trailer Trucks On The Highway?
There are plenty of reasons why you shouldn’t crowd a tractor-trailer while driving down the highway. Being close to a semi is a dangerous place to be. Some of the reasons why include:
- No.1: Tire blowouts are common. Have you ever noticed on the roadway that there are large chunks of rubber are overall over the highways as we travel? Often, the rubber is from a blow out of the tire on a big rig. The loaded trucks can legally weigh 80,000 pounds or more. That amount of weight puts a lot of stress on the tires and often they result in a blowout.
- No. 2: Wind can affect trucks. Trucks are like sailboats, there are pushed by the wind. The length of the truck and trailer create a huge amount of wind surface and effectively turn the trailer almost into a “sail”. An 18-wheeler can get blown out of its lane, or blown over into the ditch, during a storm and can this can be done with straight line winds.
- No. 3: Trucks have lots of blind spots. Your car as blind spots. However, the number of blind spots on a tractor-trailer is large. There are blind spots immediately behind the trailer, and off to the sides of the trailer as it joins the tractor. Well-trained truck drivers do not make quick lane changes due to this large number of blind spots. However, it is a good practice to try to stay away from the blind spot areas on the trucks in order to protect yourself and your family should a truck driver try to change Lanes.
- No.4: Trucks make wide turns. You may have noticed in your travels that there is often a sticker on the back of a trailer to let drivers know that “this truck makes wide turns”. This is particularly true of right turns. When a trucker begins his right turn, it’s not unusual for him to begin to swing slightly to the left in order to be able to make it around the corner. When they move slightly to the left, the risk is the auto driver will take up space immediately to the right of their vehicle and be and the “blind spot” such that the truck driver cannot see the car there. This is a frequent cause of collisions in urban areas where space is at a premium.
What Are Some Of The Severe Injuries You See Resulting In Accidents Involving These Vehicles?
The mass and momentum of a tractor-trailer are large and can cause great harm to the Roby and the mind of the victim of the driver’s carelessness. Injuries run the full range from bruising, sprains and strains of the neck, back, shoulders, arms, legs, and knees to torn ligaments and tendons in the neck, back, shoulders, elbows, wrists, hips, and knees.
Many times injuries that were originally diagnosed as “soft tissue” type injuries, (sprains and strains, etc.) are later diagnosed as injuries to the discs in the neck or back of a person involved in a crash. This type of diagnosis takes a more sophisticated test, such as an MRI, to get a full and complete picture of the injury to the vertebrae or the discs in the spinal column. If those discs are pinching or impinging on the spinal cord, or on nerves that are exiting the spinal cord in that area, the injured person may experience pain, numbness or both.
Sometimes these injuries can be successfully treated with therapy and perhaps even injections to reduce the inflammation in the area. Unfortunately, some discs are so injured that surgery may be the only option to relieve the pain and impairment. You may have heard of the term “pinched nerve”. What this may be is an in injury to the disc between the spinal vertebrae, known as a “herniated disc”.
Another type of injury that often goes undiagnosed in these types of crashes are “traumatic brain injury” or “TBI”. Often people can lose consciousness in a collision due to striking their head on something inside the car, such as the side door pillar, the window glass or even the steering wheel. Sometimes objects flying around inside the car can strike a person causing a concussion. If you feel that you lost consciousness following the collision, be sure and tell your medical providers so it can be addressed. Also, don’t diminish the diagnosis of a concussion. While it is true that a mild concussion will often resolve over time, many people who have TBI injuries don’t get the treatment they need early enough because they hope “it will get better after a few days”. A “mild TBI” can be anything but mild; it can have a long-standing impact on your ability to concentrate, remember and reason.
Of course, it is not uncommon for the injuries from a tractor-trailer crash to result in death. That is why it is so important to do an adequate investigation after the wreck before the vehicles can be moved or altered, if possible. If may additionally be necessary to have an autopsy done to determine the exact cause of death in some situations.
What Is Involved In Investigating An Accident With A Tractor Trailer?
If there are significant injuries or death, law enforcement is generally required by state law to do a crash report that includes a basic crash investigation. However, if there is a significant injury or death, securing the scene and evidence is crucial. There are instances where it may be necessary to download the data on the onboard computer systems that are in place on most trucks today. It may be necessary to obtain a temporary restraining order (TRO) to allow the inspection, photos, and download of information before the truck is altered, repaired or destroyed after a wreck.
Identifying witnesses and securing statements from them is very helpful and necessary in the early hours and days after a collision. Sometimes official police reports do not reflect all the actual witnesses to a wreck or their versions of how the collision occurred. Once again, it is critical that you contact an experienced lawyer immediately to do this type of investigation.
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Don’t take anything for granted. Many people assume that the police will do a full and thorough investigation after a collision. Unfortunately, that isn’t always the case. Your safety and health are the primary concern after a wreck, so if you need medical care, get it taken care of by going to the hospital or seeking medical help as soon as possible. If you are physically able (or have someone with you who can do it) get the name, address, phone number and driver’s license number of the truck driver. Take photos of the vehicles involved, including any signage on the truck or trailer. Take photos of the license plates of all vehicles involved, as well as the damage to the vehicles. Photos of any skid marks or gouges in the pavement may be helpful.
Get the contact information of any witnesses who are at the scene. Take photos of the witnesses also; it may be helpful when you need to find them later. Get whatever information you can at the scene and get it to your lawyer as soon as possible.
The police agency hopefully will do a full and complete investigation that may result in a lot of things being duplicated with your own efforts. However, there are many times that the police reports generated after a wreck are just plain wrong. Having collected your own information helps when we need to correct any errors or misunderstandings that appear in the police report.
How Important Are Witnesses In These Cases? What Is The Best Way To Utilize Them?
Witnesses come in a couple of different categories. Of course, witnesses to the actual collision itself are very important to the investigation of the rack. These witnesses can provide information regarding the speed, direction, and any movements of the vehicles that were involved. The guy witnesses can also talk about the damage to the vehicles and the injuries that they saw they were caused by the wreck.
The other type of witnesses that are of utmost importance are what we call “before and after” witnesses. These are the people in your life who can come in and talk about how this collision has impacted your daily activities, physical health, mental health and outlook on life. These witnesses are typically family members, close friends, co-workers and others in our life on a day-to-day basis. These witnesses are key in showing a jury ultimately the full impact that these injuries and damages I’ve had in your life.
What Are The Biggest Challenges Involved In A Trucking Accident Situation?
Some of the biggest challenges that you will face following a collision have to do with getting the appropriate professional medical care that you deserve. Many people assume that their health insurance will not pay for medical expenses caused by a truck crash that was someone else’s fault. Some doctors will even tell you that they are not allowed to bill your health insurance for charges as a result of an automobile or truck collision. That’s simply is not true. Health insurance as an obligation and responsibility to pay for your medical expenses, regardless of how they are caused. Most health insurance policies contain a subrogation clause which allows the health insurance company to seek reimbursement from the wrongdoer’s liability insurance. The reason you want to use your health insurance, in my opinion, is so that you can get quality medical care immediately.
Health insurance companies usually have a list of quality medical care providers who have previously agreed to accept the payment of the health insurance company. Often times, the health insurance rate is a rate reduced from the full rate that would be charged by the doctor to a “cash” customer. Unfortunately, some medical care providers do not like to get involved in an auto collision or truck college in cases.
I believe they stay away from those types of injuries because they do not want to be involved in the litigation where they may be forced to give their deposition or gift trial testimony regarding their care and treatment. If your doctor refuses to treat under your health insurance for auto injuries, then your options are somewhat limited. That is why it is important to retain a lawyer early in the process to help you navigate this medical care situation.
The next biggest challenges they face and a truck collision cases dealing with the trucking companies adjuster or claims service. Trucking companies are involved in claims on a daily basis. These people are professionals. They keep their jobs by paying as little as possible on claims. The profitability of the company and the insurance company involved is based on paying as little as possible for claims. Period because these people are professionals and deal with this type of situation all the time, they know all the tricks of the trade to Minimize the value of your claim and minimize your loss. They will lie to you, they will trick you and they will try to convince you that your injuries are “no big deal”. They will also try to convince you that you do not need to hire a lawyer. Now, why would they do that?
The reality is that claimants who are represented by skilled, competent attorneys recover more money for their injuries and damages the people who are not represented. They are not saving you money by telling you to not hire a lawyer. Instead, they are saving themselves money by dealing with you directly.
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Normally the name defendants in a truck inclusion matter are the truck driver, the trucking company that employed the driver, any motor carrier or shipper who owns the truck or the trailer involved in the collision and occasionally Any other company that may been involved in loading the truck if there is an indication that the trailer was improperly loaded or overloaded and that was a cause of the wreck.
The elements of damage that Texas law allows a person injured in a collision to recover generally fall into the following categories: number one: medical expenses, past and future; number two: loss of earning capacity, past and future; number three: physical impairment, past and future; number four: physical pain and mental anguish, past and future; number five: Disfigurement, past and future; number six: reasonable and necessary future medical expenses.
Obviously, not every case has all of these elements of damage. The claim in the lawsuit will reflect the types of losses that you have actually incurred. Additionally, there may be potential claims for any loss of out-of-pocket expenses for damage to property such as your car, or the contents of your car that were destroyed in the collision.
What Federal Insurance (Fmcsa) Are Trucking Companies Required To Carry?
Interstate trucking companies and vehicles are required under federal law to maintain and carry a liability policy of at least $1 million of coverage. Intrastate truckers, meeting those who only service within the borders of a single state and do not travel to another state, are required to maintain a liability insurance policy with at least $750,000 of coverage per occurrence.
Do Trucking Companies Often Have Insurance Policies Beyond The Mandatory Policy?
Depending upon the size and scope of the motor carriers operation, a trucking company may have additional insurance that exceeds the $1 million mandatory minimum limit. It is not unusual for a motor carrier to have an additional “umbrella” policy or what is known as an “access” policy. Often those policies are sold in $1 million or $10 million increments. National trucking companies often have coverage limits even higher than that
What If The Insurance Company Makes Me An Offer? Do I Have To Take It?
The decision to settle or not settle your case is yours and yours alone. You are not required to accept any offer of settlement given to you by the defendant. Likewise, they are not required to make any offer of settlement to you. Settlements are an agreement between the parties. The reason the cases and claims are settled is that it makes economic sense to both parties. Insurance companies settle cases because of the risk of going forward to trial and the cost of defending the case or more than the proposed settlement. Insurance companies and trucking companies do not settle cases because they are nice, or fair, or care about you. They settle cases because it’s in the best interest of their business.
The way to create pressure for them to settle this by pushing forward with your claim, hiring competent counsel who are trial attorneys, filing a lawsuit and pressing the case towards a trial date. It is only when the insurance company or trucking company feels the pressure Of an upcoming trial date that you will get their best settlement offer.
Why Is It Critical To Hire An Experienced Personal Injury Attorney To Handle A Trucking Accident Case?
Because of all the potential parties involved in the nature and severity of the injuries that can be caused by a tractor-trailer collision, it’s important to please retain a lawyer who has experience in dealing with these types of cases. Modern trucks today or sophisticated machines with a lot of computer technology on board. Because of all this technology on board, there is a wealth of information that can be learned from the various devices on the truck if that information can be downloaded and preserve after the collision. It is important that the investigation start early before any evidence is destroyed or “lost” by the defending truck driver or trucking company.
That’s why it’s important to retain the lawyer who has experience finding this material and getting it in the hands of experts who can utilize it to show the justice of your cause. Tractor-trailer wrecks are just “big car wrecks” and check the trailer and such. Almost all commercial vehicle racks are the result of one of three things: number one: impairment/intoxication; number two: sleep deprivation; or number three: distracted driving. Isolating the Root cause of the collision takes some investigation. Perhaps the trucking company lacks sufficient system to fully investigate the background and qualifications of the drivers they hire. Perhaps the trucking company pushes its drivers too hard to meet their deadlines, which in turn pushes the drivers towards not getting enough sleep or changing or falsifying their driver logs. With the addition of new technology in the trucks including onboard computers, GPS devices, and cell phones, there are many things that can be a distraction from of the primary duties of the driver which is to operate the vehicle safely. It is the job of the truck accidents attorney to get all these potential claims and causes to try to make our roadways safer for all of us and our community as a whole.
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- Report the incident. If you are able, report the incident to management. Next, try to get names and phone numbers of any witnesses to the fall or the events leading up to the fall. As an example, if another shopper tells you they saw the water on the floor before you fell and they already reported it to the store employees who did nothing, you really need to be able to find that witness.
- Get medical care. Delays in going to the doctor are used by claims adjusters as an excuse not to pay you or pay you very much. If you are hurt so bad, why didn’t you go to the doctor? Use your health insurance, if necessary. Your health insurer will likely have to be reimbursed from any settlement, but the most important thing is to get you the medical care you need to get better. If you don’t have a doctor or health insurance and your pain level is high, consider going to the emergency room. Finally, if you have no options regarding health providers, you may need to consult with a lawyer to assist you in finding a doctor who will treat your injuries and is willing to wait for payment at the end of the case.
- Don’t give a recorded statement to the insurance carrier without speaking to a lawyer.
Insurance adjusters take recorded statements to lock people down on their stories. Sometimes people say things they don’t really mean in their statements. For example, “it was an accident” may mean “they didn’t do it on purpose” to you when it means “no one was at fault” to an insurance adjuster. In premises case, your admission that you don’t know where the defect came from or how it was there will be used against you to show that the defendant also didn’t know where the defect came from or how long it was there. Finally, people will often say they are “OK” immediately after the incident only to find out that a day or two later that they have a significant pain level that requires significant medical care. So, were you “OK” or not? Something else happen to you? So you just started to say you were injured after you thought about it a while? These are the way insurance “think” are your statement. Don’t give them the ammo to use against you.
How Long Do I Have To File A Premises Liability Claim?
Texas law requires a lawsuit must be filed before the expiration of two years from the date of your injury. That is known as the “statute of limitations”. Making a claim against the insurance carrier is not the same as filing a lawsuit. You need to speak to a lawyer well in advance of the two year mark to determine if a lawsuit should be filed and to make sure the correct defendants are named in the cas
How Long Will My Premises Liability Claim Take To Resolve?
That depends on the nature and extent of your injuries as well as whether it becomes necessary to file a lawsuit. Keep in mind that if you are willing to take a poor offer, you can get your case settled quickly. Adjusters desire to settle your case quickly, before you realize how severe your injuries are or how significant your loss is. Ask yourself: Why are they willing to settle this so quickly? Adjusters are only interested in the “bottom line”; they don’t do anything for “fairness” or “justice”, just trying to close the file for as little money as possible.
Why Do I Need To Hire A Lawyer For A Premises Liability Claim?
These types of cases are often misunderstood. They are tricky and the injuries arising can be disabling and long-term in nature. Only through consulting a qualified premises liability attorney can you learn the true value of your claim and maximize your recovery. Finally, most of these cases require litigation to get the full value of the claim from the defendant. Your decision on hiring a lawyer with a history and reputation for litigating this cases and GOING TO TRIAL WHEN NECESSARY, will go a long way to maximizing your recovery.
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Premises liability cases are negligence cases and are submitted to the jury similar to other negligence cases. The categories of damages available under Texas law generally fall into the following categories:
- reasonable and necessary medical expenses – past and future;
- loss of earning capacity – past and future
- physical pain – past and future
- mental anguish – past and future
- physical impairment– past and future;
- disfigurement – past and future
Can Punitive Damages Be Recovered In A Premises Liability Case?
Yes, under very special and extreme circumstances. In short, there would have to be evidence of “gross negligence” on the part of the defendant. That term is defined in Texas case law as
Gross negligence is “an act or omission involving subjective awareness of an extreme degree of risk, indicating conscious indifference to the rights, safety, or welfare of others.” State v. Shumake, 199 S.W.3d 279, 287 (Tex. 2006) (citing Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 21 (Tex. 1994)).
The Texas Supreme Court is very conservative and very pro-business when reviewing these types of cases. While a jury can sometimes be persuaded to award punitive damages in these cases, the likelihood of holding that aware on appeal is pretty thin.
Regarding Premises Liability Claims?
- Misconception #1: I fell in their store, so it has to be their fault. While a business owner has a duty to customers (known as “invitees” under the law) to keep the business premises reasonably safe, the law does not make the business owner automatically liable for every injury that occurs on the premises. The concept that is used often in these cases is “notice”. If a condition existed for such a short period of time that the owner/occupier did not have the opportunity to discover or warn of the defect, then it’s likely that the business will be found to not be negligent in the incident. For example, let’s say that a mom is pushing a cart through a grocery store and has a small child in the cart, drinking from a ‘sippy cup”. The child takes the lid off the cup and spills his drink on the floor. I second later you come around the corner and step in the liquid, slipping and hurting your back. The store will take the position that they were not negligent because the defect (liquid on the floor) was there such a short time that they could not have reasonably been expected to find it and clean it up. And, in my experience, that defense will be a winner for them at the courthouse.
- Misconception #2: Slip and Fall cases are easy. Nothing could be further from the truth. Slip and fall cases are amount the most difficult to win and trial due to the proof of notice of the condition that is necessary. In fact, many law firms have a blanket rule that they do not accept slip and fall cases, due to the lack of success. Plaintiffs win jury verdicts in this cases less than 50% of the time if the case proceeds to trial and when the Plaintiff does win, contributory negligence often reduces the amount of the recovery by the percentage of negligence that is assigned to the Plaintiff for failing to “watch where they were going”.
- Misconception #3: Big companies always settle these cases. Not True. Different companies obviously have different philosophies about how to handle injury claims, but most have a significant role in deciding what claims are settled and what claims are denied. Business policies often have a “self-insured retention” (think “deductible”) for which payments come directly from the business as opposed to the insurance carrier. Other companies often will take a strong position on denying claims with the thought that they are sending the message that they will not be “labeled” as a company that is easy pickings for claimants. Walmart, for years, took a very hard line on claims and didn’t settle even clear liability claims in an attempt to dissuade claimants from making claims.
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Every case is different, and I don’t know that there is a typical personal injury case. It depends on the triggering mechanisms that move things through the system or how long it will take you to receive your care and treatment because you don’t want to talk about settling your case until you are done treating with your doctor so you have a handle on what your future medical needs might be. The statute of limitations in Texas for personal injury claims is two years from the date of the wreck; so if your claim hasn’t been resolved within two years, then you will need to file a lawsuit in order to keep your case from being barred by the statute of limitations. Once a lawsuit is filed, different courts work at different paces and at different workloads, though it’s really hard to tell.
The Texas Supreme Court has some rules in place where they try to force the parties to have the case ready for trial within 18 months of the date of the finding, but often backlogs can cause those trial dates to take longer than that. Keep in mind that as the claimant, you are the one that wants to keep things moving forward; so when you are considering hiring a lawyer, you need to hire one who is going to continue to push the ball forward and keep things moving. The insurance company and their lawyers are more than happy to let things sit because they have the money. It’s in their account, working for them. It’s up to us to keep stirring the soup and make sure that the case is moving forward towards a resolution.
How Do People Generally Hurt Their Own Personal Injury Claim?
Hurt people go to the doctor; and while trying to tough it out may have been admirable when you were on your high school football team, making appointments and waiting to go to care like it’s no big deal, must not be heard by the insurance adjuster. Another thing that people do that may unintentionally hurt their claim is that sometimes they will admit fault that wasn’t there.
Lots of people are very non-confrontational and don’t want any fuss when an injury occurs. I understand that, but you must be mindful of your comments that when repeated later are going to be taken as admitting responsibility that wasn’t there. For example, if you made a hard stop at a red light, it doesn’t give another car the right to slam into your vehicle. If you told the other driver or the police officer that you were cutting it close at that light, then it might get embedded into the police report for that adjuster to use against you. It’s okay to exchange information and be polite to the other parties involved in the wreck, but they may take it too far and assume you were taking responsibility for something that wasn’t your fault. That is something I see people doing all the time, unfortunately.
What Sets You And Your Firm Apart In Handling Personal Injury Cases?
This is all we do. I don’t do divorces, I don’t do criminal work, and I wouldn’t know where to stand in the bankruptcy court if you called me down there. I do personal injury work for plaintiffs, for victims of negligence and only for those people. For the first seven years of my career, I worked on the other side for a law firm that did insurance defense work. After a while, I learned that if I’m going to spend my career doing this, I’d rather be doing it for the people who have been hurt and are being victimized for a second time by the conduct of the insurance company, seeing how they handle their claim. My practice is small by design; when you call here, you are going to talk to me, my assistant or my voicemail. Those are the only three options.
I encourage my clients to keep in touch and call if they have questions. The last thing I say to someone after we sign the paperwork to retain me is remember this: If you have questions, call. That’s what we are here for; you are not wasting our time. I’m board-certified in personal injury trial law by the Texas Board of Legal Specialization and have been since 1995. What that means is my practice is primarily personal injury and I’ve taken a really nasty written exam that only a small percentage of lawyers, who’ve practiced in this area, has passed. So I think it’s important to show that I’m well qualified to do what I do, which is represent you and get you the best result in your case.
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