11 STUDENTS INJURED IN DEADLY SCHOOL BUS ACCIDENT NEAR HOUSTON | Dallas, Texas Personal Injury Attorney Blog
11 STUDENTS INJURED IN DEADLY SCHOOL BUS ACCIDENT NEAR HOUSTON
By Rachel E. Montes posted in Auto Accidents on Wednesday, December 29, 2010
A school bus carrying the Crosby High School’s ninth-grade girls basketball team was involved in a major collision last night when it was struck by an SUV driven by Sideny Eugene Kelton. Police say a vehicle ahead of Kelton was stopped to yield to oncoming traffic to make a left turn onto Tall Cedars Street and Kelton moved into the southbound lane, apparently to avoid hitting the vehicle, but then Kelton hit the school bus head-on. Police report that Kelton died at the scene.
The eleven students and two adults on the bus were all taken to area hospitals and have been released. The school bus did not have seat belts.
WHO PAYS IF YOUR CHILD IS HURT IN AN ACCIDENT ON A SCHOOL BUS?
Obviously, it is important to get your child the appropriate medical care he or she needs. The question is who is going to pay for the medical bills?
In Texas, the answer to that question, depends on who is at fault for the collision, and how much insurance coverage is available to pay for those damages.
Let’s assume that the Mr. Kelton was negligent and that he alone was the sole cause of the collision. If that is the case, then hopefully he is insured, and claims can be made with his insurance company. However, most drivers are either not insured at all, or have only the minimum amount of insurance coverage required by law. As a result, it is very likely, that in any car wreck where 13 people are treated at a hospital, that there will not be enough insurance to pay for everyone’s medical expenses, not to mention other damages. The minimum amount of insurance coverage is set to increase in 2011, but for now, the minimum liability coverage is $25,000 per person or $50,000 per occurrence.
TOO MANY PEOPLE AND NOT ENOUGH INSURANCE
If you are involved in accident like this one, you need to get legal advice as soon as possible. In these cases, it is essentially a race to get your claim paid. The person at fault has a limit of insurance coverage. Once those funds have been paid, even if you have a valid claim, you are likely to find that there is no insurance coverage remaining to pay your claim and that the person who caused your wreck does not have enough personal assets to pay your damages.
In 1994, the Texas Supreme Court in the case of Texas Farmers Ins. Co. v. Soriano et al, 881 S.W.2d 312 (Tex. 1994) addressed the responsibilities of a liability insurance company when it is faced with a settlement demand arising out of multiple claims and inadequate proceeds, an insurer may enter into a reasonable settlement with one of the several claimants even though such settlement exhausts or diminishes the proceeds available to satisfy other claims.
It is essentially a first come, first serve rule. The first person to present a valid and reasonable demand is entitled to get paid even if other valid claims are known to exist. Depending upon the unique facts of the case, there are a number of specific requirements that have to be included in the demand to make it a valid demand. If the demand does not include these specific requirements, technically speaking, it is not a valid demand and the insurance company may be forced to pay other people’s claims before paying you. It may even exhaust the policy limits and have no additional funds to pay your claim if you delay or fail to present a valid demand. As a result, if you are involved in one of these multi-car crashes, you should run, not walk, to a lawyer to get immediate legal advice or you may find yourself in a situation where you get victimized twice.
DO SCHOOL DISTRICTS HAVE UNINSURED/UNDERINSURED MOTORIST (UM/UIM) COVERAGE OR COVERAGE FOR PERSONAL INJURY PROTECTION (PIP)?
Based upon the assumption that Mr. Kelton is the only person at fault, and that he is either uninsured or does not have sufficient insurance coverage (underinsured) to pay for everyone’s damages, the question then changes to is there any other insurance money available to pay for these damages?
In Texas, public schools do not carry uninsured/underinsured motorist coverage. While school districts are authorized to purchase insurance protection for claims made against the school district and their employees by injured parties as indicated under the Texas Tort Claims Act (Chapter 101, Texas Civil Practice and Remedies Code), under Article 3, Sections 50, 51 & 52 of the Texas Constitution, a school district is not authorized to spend funds to benefit private individuals.
Under Articles 5.06-1 and 5.06-3 of the Insurance Code, the no-fault character of the coverages would provide benefits to the persons to whom the school district owes no legal obligation. Thus, the Attorney General of Texas has held in Opinion No. H-602 (1975) that the provisions of such coverage, at the expense of the school district, would amount to granting of public money or thing of value to an individual which is in violation of the Texas Constitution.
According to that opinion, to purchase UNINSURED MOTORIST/UNDER-INSURED MOTORIST COVERAGE or PERSONAL INJURY PROTECTION COVERAGE with district funds would be unconstitutional and that such coverage does not in any way meet any obligation of the school district created by the Texas Tort Claims Act. The opinion may be accessed on line at (Article no longer available online)
OTHER PIP OR UNINSURED/UNDERINSURED MOTORIST COVERAGE
If one of the parents of the students on the bus have PIP, MEDPAY or UM/UIM coverage on their personal auto insurance policy, then that parent and student can submit a claim to their insurance company for their injuries and damages.
CAN YOU SUE THE BUS DRIVER OR THE SCHOOL DISTRICT?
Just because the students were on a school bus going or coming home from a game does not mean the school district is responsible to pay for those medical bills. The school district would only be responsible if the bus driver was negligent and, to some degree, proximately caused the collision. If the bus driver was negligent, but that negligence was only 1% of the cause, then the school district would only be responsible for 1% of the damages.
In Texas, if you are injured in an auto accident with a public school bus, you can sue the school district for your damages, but The Texas Tort Claims Act requires that you bring your claim or lawsuit against the governmental entity for whom the officer works (i.e. the school district), not against the bus driver. See Section 101.026 of the Texas Civil Practice & Remedies Code.
Depending upon which governmental unit the driver works for, the law also limits how much can be recovered. The law caps the amount of damages that people get government to pay on these claims. See Section 101.023 of the Texas Civil Practice & Remedies Code.
Although in Texas there is a 2 year statute of limitations, when the person driving a vehicle is a local or state government employee, the law (Section 101.101 of Texas Tort Claims Act) requires that you submit proper written notice of your claim to the correct governmental entity within a much shorter time period, within 6 months from the date of the incident. However, depending on the unique facts of a particular case, there may be other laws that impose shorter notice periods and other notice requirements in addition to those in this section of the Texas Tort Claims Act.
In addition, if the case involves a claim against a federal employee, there are different notice requirements imposed by federal law. In any event, the lesson to be learned if you are every involved in any type of incident with a governmental employee, you need to appreciate that there are probably requirements imposed by that require you to submit proper legal notice of your claim within a very short amount of time to a specific person, and the failure to provide this proper and timely written notice of your claim, may cause you to lose all of your rights against the responsible person even if you file a lawsuit within the applicable statute of limitations.
DALLAS PASTOR ARRESTED FOR CHRISTMAS EVE BURGLARY | Dallas, Texas Personal Injury Attorney Blog
Dallas Police have arrested Pastor Sandy McGriff (52), pastor of The Church of the Living God, and charged her with burglarizing a home and attempting to steal more than $10,000 in clothes and other items on Christmas Eve from the home of one of her church members.
McGriff has said it is all a big misunderstanding and a personal lapse in judgment. She says she actually was bravely protecting her former parishioner’s valuables from two other would be theives. McGriff says she went to pick up a peach cobbler from a friend. And then, she said, “Something just told me to go past her friend’s house. McGriff says she noticed two men coming from the side of the home. She then walked around the home and saw a broken kitchen window.
McGriff did not call 911 or even her friend. McGriff cleared away the broken glass, stood on a barrel and climbed through the window to save her parishioner’s stuff from thieves she feared might return. McGriff says, “My mistake was I did not call 911,” the pastor told a reporter. “I just used poor judgment.”
However, a neighbor, David Nanez saw the pastor and he told police he watched the pastor use a ladder and then a barrel to climb up to the window and hit it with something.
According to the Dallas Morning News, McGriff has a previously used a fake name and a allegedly has a criminal record that includes a 35-year-old prostitution conviction.
ARLINGTON TEENAGER KILLED WHEN HE WAS KNOCKED OFF OF A BRIDGE | Dallas, Texas Personal Injury Attorney Blog
Clinton Young (18) of Arlington, Texas was killed Tuesday afternoon. According to police, Clinton Young was involved in an accident, and got out of his vehicle. As he was standing outside his damaged vehicle on the overpass, a second wreck occurred, knocking him over the railing and onto the freeway below. Young fell from a U.S. 287 ramp onto northbound East Loop 820.
Police have not indicated what may have caused the driver of the truck to cause the second accident. There is no information on whether the driver was distracted or on a cell phone. Whatever happened, it is important to remember that a huge number of drivers on the road are distracted while driving. This is such a sad story and such a tragedy. Our hearts and prayers go out to this young man and his family.
Remember that drivers are talking on cell phones, texting while driving, driving while intoxicated, putting on make up, eating, reading and doing a host of other things besides paying attention to the road. Remember that any time you are involved in a wreck or if you have to stop on a highway always try to get to a position of safety if at all possible. Never assume that other drivers will see you or your vehicle no matter how visible you are as too many drivers are simply not paying attention.
BIG CORPORATIONS VS. TWD (TEXTING WHILE DRIVING) | Dallas, Texas Personal Injury Attorney Blog
Did you need yet another message about the dangers of texting and driving? Who would have thought as recently as 20 years ago that we, as a society, would be even thinking about texting, let alone texting and driving. Now, corporate America is jumping on the anti-texting and driving bandwagon.
Dallas-based AT&T released a 10-minute documentary on the dangers of texting while driving. The compelling video shows the real-world consequences of texting and driving by featuring surviving family members of those killed in distraction crashes.
Statistics show that there are a staggering 5 billion text messages sent each day. Texting has become so pervasive, and such a common way of communicating that it is important for everybody to get the message out that texting while driving is dangerous and you really do need to be paying attention when you’re behind the wheel.
Allstate started its own project, asking teen drivers to pledge to not text while behind the wheel.
Allstate held an event in Grapevine for teens to sign an anti-texting and driving pledge. They gave out plastic thumb rings to remind teen drivers to get a designated “texter” when they drive.
State lawmakers are also introducing bills into the new legislative session to make it illegal to text and drive anywhere.
Texting while driving has a more profound affect on reaction times than drivers realize. A road test run by Car & Driver magazine showed dramatically slower reaction times by two test drivers who tried to brake while reading and, separately, writing text messages. Previous studies on DWT have typically been run in car simulators. The magazine believes its study may be the first conducted in a real vehicle on a stretch of road.
To cover different age ranges, two separate tests were set up on a road course–one with 22-year-old Jordan Brown, a Car & Driver intern, the other with the magazine’s 37-year-old editor-in-chief, Eddie Alterman.
Using a Honda Pilot as the test vehicle, both drivers first drove a straight line and were told to hit the brake in response to a light that flashed on the dashboard. That measured their baseline reaction time. The second test had the drivers read a text message while driving; the third asked them to type a message while behind the wheel.
An additional test also compared the effects of DWT with driving while intoxicated, on the same day under the same road conditions. After downing enough alcohol to become legally drunk, the test subjects took to the road again.
The results showed that at 35 mph, it took a sober Brown an extra 21 feet to hit the brake while reading a text message, and an extra 16 feet while typing a message.
At 70 mph, it took him 30 extra feet to jam on the brake while reading a text, and an extra 31 feet while composing.
Those figures compared with an extra 7 feet at 35 mph and an extra 15 feet at 70 mph while intoxicated. However, in his drunken condition, Brown had to be told twice which lane to drive in–a dangerous scenario if he had been in actual traffic.
DRUG COMPANIES TOP ALL OTHER INDUSTRIES IN FEDERAL FRAUD LAWSUITS | Dallas, Texas Personal Injury Attorney Blog
The pharmaceutical industry leads the way in committing fraud against the U.S. government, according to the findings of a study conducted by the consumer watchdog group Public Citizen.
One out of every four dollars collected by the U.S. government due to fraud charges under the False Claims Act comes from pharmaceutical companies, according to a report released by Public Citizen on December 16. That 25% is more than twice the amount paid by defense companies, which was the second most fraudulent industry, but only accounted for 11% of fraud settlement amounts, the report found.
The numbers come from an analysis of civil and criminal settlements under the False Claims Act at the state and federal level since 1991. There have been 165 pharmaceutical industry settlements with the federal government over fraud charges in the last 20 years, totaling $19.8 billion. But 73% of those cases, and 75% of that money, have happened in just the last five years.
Most of the fraud cases brought against pharmaceutical companies by the U.S. Department of Justice (DOJ) are for attempting to market medications for uses that have not been approved by the FDA as safe and effective. Referred to as “off-label marketing,” it is illegal under federal drug regulations for a company to promote their products for uses that have not been approved by the FDA, although doctors are allowed to prescribe approved drugs for any use they see fit. Off-label marketing makes the drug companies billions of dollars every year.
The drug companies would rather pay fines than cut back on their money-making off-label marketing schemes, this tells you just how much money is at stake. Rather than comply with regulations, companies such as Eli Lilly, GlaxoSmithKline, Pfizer and Schering-Plough have collectively shelled out $10.5 billion to settle government fraud charges.
The largest criminal fraud fine in history was $1.2 billion paid by Pfizer in 2009 for charges that it illegally marketed the painkiller Bextra. The company had to pay $2.3 billion in total to settle the civil and criminal lawsuits against it and had to enter into a five-year corporate integrity agreement with the U.S. Department of Health and Human Services. It was the fourth illegal marketing fraud case the company had paid to settle since 2002.
The day the Public Citizen report was released, the Justice Department announced that Elan Pharmaceuticals had agreed to pay $203 million to settle fraud claims that the company illegally marketed the epilepsy drug Zonegran. The company promoted the drug, only approved to prevent seizures, for everything from migraine treatment to weight loss. In 2009, the FDA warned that Zonegran side effects may include a chemical imbalance in the blood known as metabolic acidosis, which can damage the kidneys and bones and could retard growth in children.
A large number of the cases brought against pharmaceutical companies, including both the Pfizer and Elan settlements, have been whistleblower lawsuits brought by former employees, doctors, and others in the medical profession who were privy to information on the companies’ wrongdoing. Public Citizen found that from 1991 to 2000, whistleblower lawsuits accounted for about 9% of federal fraud settlements. However, from 2001 through 2010, that number has climbed to 67%.
Under the qui tam provision of the False Claims Act, whistleblowers who report a false claim against the government may be entitled to receive a portion of any money that the government recovers from the offenders. In return, the whistleblower must be the first to bring the case to the government’s attention, and must not publicize the claim until the DOJ decides to prosecute the claim.
Are our cars made to be safe and crash-worthy? One-car wreck costs a man his life in Houston | Dallas, Texas Personal Injury Attorney Blog
A family lost one of its members when a man was killed after one-vehicle, rollover wreck in Houston late Thursday night, authorities said.
Investigators learned the man was driving a tan Chevy pickup truck south in service road of the 9200 block of South Freeway around 11:30 p.m. when he drove onto an uneven grassy area, authorities said. The truck then rolled over, throwing the driver from the vehicle, where he died on the scene.
Car manufacturers have a duty to make safe, crashworthy cars. There are several layers of testing that a manufacturer conducts on its cars to determine whether they are safe, and crashworthy, including their propensity to roll in the event of uneven pavement, or evasive action taken by the driver. Surprisingly, some auto makers cut corners and skimp on safety measures to save money.
Crashworthiness cases involve claims that a design defect caused or contributed to the injuries of a vehicle’s occupants during a crash. To identify a crashworthiness claim, one must examine the interplay among the circumstances of the accident, the performance of the vehicle during the accident, and the injuries suffered. Such defects may cause or contribute to injuries, or may fail to provide suitable protection from injury in foreseeable accidents. Crashworthiness claims have taken many forms, both in Texas litigation and throughout state and federal courts.
Claims that a manufacturer should be held liable for failure to provide protection to vehicle occupants in the event of an automobile collision began to reach the courts in the early 1960s. Courts all over the United States struggled with this new theory and decisions were inconsistent. In the State of Texas, the Texas Supreme Court noted that the crashworthiness doctrine was merely a logical extension of long-articulated principles of Texas products liability law and that cases asserting the doctrine were to be charged as any design defect case:
There is no valid distinction in strict liability between a conscious design defect causing an accident and a conscious design defect causing an injury. By the same token, there is no rational basis for a difference in the manner of submission of the issues to be determined by the fact finder. We have not required a balancing of enumerated factors in jury submission by our previous writings, and, as stated earlier, we disapprove the ruling of the Court of Civil Appeals that such is required in a crashworthiness case.
Turner v. General Motors Corp., 584 S.W.2d 844, 848 (Tex. 1979).
Automotive Product cases, crash worthiness cases, are now litigated throughout the nation. Fifty years ago, this was a new concept and relatively unknown. Now, the people of the United States have been inundated with media discussing the Ford Pinto gas tanks, the Ford/Firestone debacle of the mid to late 1990s and various other high-profile vehicle defects.
If you or a loved one or family member have been affected by a defective automobile, we can help. We employ accident reconstruction experts immediatley to evalute the car, investigate the scene, and, most importantly, preserve the car as evidence. Insurance companies send their investigators to the scene to button up the evidence to portray the case in the light most favorable to them. You and your family need to do the same. Hire a crashworthiness lawyer immediatley to protect you and your family.