All Posts By

Jesse Lotspeich

Feb 17
15
Accident on Icy Road

Accidents on Icy Texas Roads: Who is Liable?

By | Car Wreck

Accident on Icy RoadWhen we think of extreme weather in Texas, we generally think of severe thunderstorms, hail, wind, and tornados, but, as we have learned in February 2021, ice and snow storms can be just as dangerous and deadly. There’s also a human factor when snow and ice hit Texas that increases the likelihood of severe injuries and even death for the untrained, inexperienced, and careless driver.

A Federal Highway Administration report states that on average, icy roads cause 151,944 vehicle accidents, 38,770 crash injuries, and 559 crash fatalities a year. These ice-related accidents produce roughly 11% of all weather-related accidents in the country. This is alarming because it shows how dangerous icy roads can be, but it should also alert you to the possibility of personal injury or property damage if you decide to drive in icy conditions.

Icy Roads in the Texas News (2021)

The Basics of Negligent Driving in Texas

In the simplest form, negligence involves:

  • A duty to a person (the duty to be a careful, safe driver);
  • A breach of that duty (driving too fast, etc); and
  • That breach causing damages to another person (property damage, injuries, or death caused by a car accident).

Every driver has a basic duty to other drivers to drive safely and not collide with anyone. This requires them to drive as a reasonably prudent person would drive in the given situation. When they breach that duty, or collide with another person or vehicle, they may be liable for the physical or financial damages they caused. But what if the roads were icy and the driver lost control?

Ice is NO Defense to an Accident! | Liability for Accident and Injuries in Winter Conditions

Drivers are expected to take note of weather and road conditions and adjust their driving accordingly. When the temperatures are near or below freezing and precipitation is present, there is a strong possibility of ice on the roads. Because a driver should know of the chance of icy conditions, they should drive as a reasonably prudent person would drive on icy roads.  Blaming the ice will not work if the driver crashes into another car on the road.

Precautionary Measures for Driving in Icy Weather | Driving in Texas in the Winter

When there may be ice on the roads, you should take precautionary measures when driving:

  • Don’t drive unless you have to;
  • Follow your local news or go to drivetexas.org* to get updates on road conditions;
  • Drive below the speed limit;
  • Do not get distracted from the road; and
  • Avoid hills, bridges, and low spots if you can.

If you are hit by a driver who was driving in icy conditions, even if they lost control, they may be liable for negligently driving. You should contact your attorney with the accident report and any other information from the accident to help work through your options.

For more winter weather driving tips, click here.

*drivetexas.org is run by the Texas Department of Transportation who also posts on social media outlets.

Jan 13
7
Texas Stowers Doctrine Insurance Settlement

The Stowers Doctrine | Good Faith in the Settlement of Claims

By | Car Wreck, Personal Injury

What is the Stowers Doctrine and How Does it Apply to a Personal Injury Case in Texas?

Texas Stowers Doctrine Insurance SettlementUnder the typical Texas liability insurance policy both the insurer and the insured have mutual obligations and rights. The insured pays a premium to their insurance company to protect against unexpected losses and claims. On the other hand, the insurance company has a duty to defend against claims covered under the policy and a right to control the defense of litigation should it arise.1 Included in the right to control litigation is the insurer’s authority to make the decisions concerning policy coverage, the merits of claims made by third parties against the insurance company, and the settlement of such claims.2 But what happens when an insurance company refuses an offer to settle within the policy limits?

According to the Stowers Doctrine, the insurer has an implied duty to act in good faith and accept reasonable settlement demands within policy limits.3 This is called the Stowers duty. Through this duty the insurer protects the insured against judgements in excess of policy limits. Under the Stowers Doctrine, if an insurance company negligently failed to accept a reasonable offer within policy limits and a jury then returns a verdict in excess of the policy limits, the insurance company may be liable for the entire verdict, even though it exceeds policy limits.4

History of the Stowers Doctrine

The Stowers Doctrine originated in 1929 from the Texas Supreme Court case G.A. Stowers Furniture Co. v. American Indemnity, Co., 15 S.W.2d 544 (Tex.). Stowers Furniture Co. had an auto insurance policy with American Indemnity for $5,000. During the policy term, a furniture employee’s truck was involved in an accident and suit was brought by the injured passenger, claiming $20,000 in damages. While the suit was pending, the injured party served Stowers with a letter offering to settle for $4,000—within policy limits. The letter gave a deadline to accept the offer and provided proof of the excessive damages. American Indemnity refused to settle and went to trial with the intention of saving money. They lost at trial and a jury awarded the injured party more than twice the amount of the policy. The terms of the insurance policy stated that Stowers was responsible for a judgment in excess of the policy limits. Stowers paid the judgement and then sued the insurance company for reimbursement.

The Texas Supreme Court held that American Indemnity owed a duty to Stowers to exercise ordinary care in the settlement of claims. American Indemnity was responsible for protecting the insured up to the policy limit. The Court remanded the case to the district court to allow testimony of the serious nature of the passenger’s injuries to determine if American Indemnity was negligent in refusing the settlement offer.5 If American Indemnity rejected a reasonable settlement within the policy limits, they would potentially be liable for the entire judgement, even that in excess of the policy.6

The purpose behind Stowers is to encourage insurance companies to settle claims for the policy limit. Because insurance companies have complete power over litigation, they have a corresponding duty to their insured to exercise the same degree of care that a prudent person would exercise under similar circumstances. Failing to exercise such care is deemed negligent on the part of the insurance company.7 Put simply, the insured is protected from the insurance company taking a risk when a reasonable person would have settled.

How Does a Stowers Demand Work?

The Stowers Doctrine is a tool unique to Texas law and has created a new type of settlement demand: the Stowers demand. This demand is a time-sensitive letter sent to a third-party insurance carrier with an offer to settle within the insured’s policy limits.8 For a Stowers demand to be valid, five requirements must be met:

  1. the claim against the insured is within the scope of coverage;
  2. liability is reasonably clear;
  3. the demand is within the limits of the policy;
  4. the settlement terms are such that an ordinarily prudent insurer would accept it when considering the likelihood and degree of the insured’s potential exposure to an excess judgment; and
  5. the demand offers the insurer an unconditional, full release for liability.9

If these requirements are met and the insurer fails to accept the offer by the deadline, the defendant’s insurance company may be held responsible for verdict in excess of its insured’s policy limits.10

Footnotes:

  1.  Stephen G. Cochran, Texas Practice Series: Consumer Rights and Remedies § 5.13 (3d ed. 2017).
  2.  Id.
  3.  American Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842, 846 (Tex. 1994).
  4.  See G.A. Stowers Furniture Co. v. American Indemnity, Co., 15 S.W.2d 544, 547 (Tex. 1929).
  5.  Id. at 548
  6.  Id. at 547
  7.  Texas Farmers Ins. v. Soriano, 881 S.W.2d 312, 314 (Tex. 1994).
  8.  American Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842, 844–45 (Tex. 1994).
  9.  Id. at 849; Trinity Universal Ins. Co. v. Bleeker, 966 S.W.2d 489 (Tex. 1998).
  10.  See Ecotech Int’l, Inc. v. Griggs & Harrison, 928 S.W.2d 644, 646 (Tex. App.—San Antonio 1996, writ denied); Stowers Doctrine, Int’l Risk Mgmt. Inst.
Jul 15
39
Uber Lyft Accident Claim Liability Texas

Suing Uber and Lyft for the Accidents of their Drivers

By | Car Wreck

Uber Lyft Accident Claim Liability TexasRideshare companies like Lyft and Uber have risen to prominence over the last several years, grabbing a sizable market share from traditional taxi cab and town car companies. Additionally, there has been a surge in food delivery services (like DoorDash) and contract delivery drivers for Amazon. With more and more of these companies offering rides and deliveries from their part-time drivers, we are also seeing accidents involving the drivers for these companies. These accidents can sometimes have confusing liability issues that accompany them. It is important to know how to proceed and what you are entitled to if you are involved in an accident with a rideshare driver, as a passenger or another driver.

Can You Sue the Rideshare company? Who is Liable in a Lyft or Uber Accident?

As with most legal questions, the answer is, it depends. Liability for an Uber or Lyft accident will depend upon whether the driver is logged on to his rideshare company’s app, and if so, whether the driver is waiting for a ride request or actively giving a ride or making a delivery. The Texas Insurance Code Chapter 1954 requires rideshare drivers to carry specific insurance policies that provide coverage regardless of their activity, so you will need to ascertain a few facts before you determine your course of action.

Was the Driver Logged on to the Rideshare App?

If the driver was NOT logged onto the ridesharing app, then the driver’s personal insurance will be responsible for covering the driver in the event of an accident. There generally will not be any ramifications for the rideshare company, and no real reason to pursue any claims against them. Of course, we would need many more facts to determine the exact course of action. If the driver is logged on to the rideshare app, you will need to determine whether they are in-between rides, or actively participating in a ride.

Was the Driver in-between Rides When the Accident Happened?

This is the largest gray area in the new insurance law. While coverage is required, there is no requirement regarding who must cover the driver. Many insurance companies exclude coverage on drivers using their personal vehicles for ridesharing purposes, and rideshare companies are hesitant to provide the additional coverage since they are not required to by law. Ridesharedashboard.com lays out the coverage options in Texas, pointing out that currently, only GEICO and Farmer’s offer coverage to both Uber and Lyft drivers, while MetLife will cover Lyft drivers only, and Allstate is currently working on their rideshare policy.

Nonetheless, the Texas Insurance Code Sec. 1954.052 requires rideshare drivers to be covered by a 50/100/25 policy. This means that they must be covered up to $50,000 for bodily injury or death of each person in an incident, $100,000 for bodily injury or death of a person per incident, and $25,000 for damage or destruction of property of others. This is a higher level of coverage than the standard 30/60/25 policy required for Texas drivers. This should not be an issue as drivers are required to notify their insurance provider if they are driving for a rideshare company. However, it will be very important to determine who is covering the driver in the event of an accident. Fortunately, there is a safeguard in Sec. 1954.054 that requires the rideshare company to cover claims in the event the driver’s policy has lapsed or does not cover the claim. If you find yourself in this situation, please get as much information from the driver as possible and contact an attorney immediately.

For driver’s logged onto the rideshare app but currently in-between rides:

  • Uber Provides: 50/100/25 coverage for its drivers and can supplement the personal policy
  • Lyft Provides: 50/100/25 coverage in the event a driver’s personal policy does not cover this much.

Was the Lyft or Uber Driver Engaged in a Ride?

The term “engaged in a ride” can mean two things: either the driver was on his way to pick up a passenger, or the driver currently had a passenger in the car. If the driver involved in the accident was currently engaged in a ride, that driver MUST be covered by a $1 million coverage policy according to Texas law. Recent legislative action in many states has pushed for this coverage, influencing these companies to adopt these insurance policies. Should you be involved in an accident with an engaged rideshare driver, whether as passenger or third party, this insurance should provide coverage for damages caused by the driver.

For drivers “engaged in a ride:”

  • Uber Provides:
    • $1 million coverage for damages caused by driver
    • $1 million coverage for damage done by an under/uninsured motorist
    • Supplemental coverage for collision and comprehensive personal policies
    • These will cover the rider if a rider is in the car with the Uber driver
  • Lyft Provides:
    • Lyft will take over as primary provider
    • $1 million coverage for damages caused by driver
    • $1 million coverage for damage done by an under/uninsured motorist
    • Supplemental coverage for collision and comprehensive personal policies

What Should You Do if You are Involved in an Accident with a Rideshare Driver?

  1. Get to a safe place and call 911. Safety and health are the first priority.
  2. Take pictures of the accident and surroundings.
  3. Get the names, phone numbers, addresses of everyone involved and any witnesses.
  4. Get the name of the rideshare driver, determine whether they were logged on to the rideshare app, whether he/she was engaged in a ride, and get a picture of the insurance policy
    • Under Sec. 1954.056b, the drivers are required to provide this information in the case of an accident
    • If you are the passenger of a rideshare when the accident occurs, screenshot the app on your phone
  5. Call your attorney.

 

To review companies’ insurance policies, click on their Logo below:

Uber Accident Coverage TexasLyft Driver Liability in Texas

Jan 22
1
Airbag Injuries Texas

Airbag Injuries

By | Car Wreck

Airbag Injuries TexasAirbags can often mitigate chances of severe or deadly injuries to the driver and other passengers. According to the US National Highway Traffic Safety Administration, airbags have saved more than 50,000 lives in the United States alone. In some cases, however, an airbag can malfunction during a collision or can be deployed improperly during a non-accident, leading to additional injuries. In many of the car or truck accident cases that we handle, our clients sustain injuries from the airbag. Because airbags were designed to operate instantaneously by using a range of sensors and an internal explosion, even the tiniest malfunction within its system can create devastating effects.

Causes of Malfunctioning Airbags and Resulting Circumstances

Common reasons airbags malfunction may include:

  • Nonactivated sensors;
  • Defective airbag sensors;
  • Faulty electrical components; and
  • Defective crash sensors;

If the airbag malfunctions for any of these reasons, it may result in a variety of problematic circumstances:

  • The airbag may be deployed during a non-accident;
  • The airbag may fail to deploy during a collision;
  • The airbag may deploy in the wrong area of the vehicle; or
  • The airbag may deploy too late (after the accident has already occurred)

Common Injuries Related to Airbags

Airbag injuries can occur even if the airbag functions properly during a collision. Airbags may lead to a range of injuries to various parts of the body. The force of the airbag, which is estimated to deploy at 100 to 220 mph, along with the chemicals used within the device, may create significant trauma to the body. Common injuries include:

  • Abrasions;
  • Burns;
  • Broken bones;
  • Eye injuries;
  • Brain injury;
  • Internal bleeding; and
  • Broken ribs

What Are Your Options and Solutions if You are Injured by an Airbag in Texas?

If you experienced airbag-related injuries due to the negligence of another driver in an automobile accident, you may be entitled to recovery. If you are experiencing discomfort or pain after an airbag related injury, it is important to seek medical attention. We do not charge a fee on injury cases unless we collect damages for you. Call us today at (817) 993-9249 or contact us online.

Jan 16
2
Left Lane Passing Texas Law

Why Driving Slowly in the Left Lane Can Cause Accidents

By | Car Wreck

We’ve all been there…stuck on the highway while the driver in the left lane (i.e. the “fast” lane) is going slower or the same speed as the cars on the right. This can cause congestion and considerable frustration to drivers wanting to pass. Texas Transportation Code Section 545.051 actually requires slower drivers to use the right hand lane. However, it would appear that many drivers are unaware of this requirement.

Does Driving Slowly in the Left Lane Cause Accidents?

As personal injury attorneys, we have seen many car accidents that happened on the highway due to unsafe passing. This typically happens when the faster driver weaves in and out of lanes trying to pass the slower drivers. Vox published a helpful video that does a fair job explaining the danger of driving slowly in the left lane.

 

Texas is Cracking Down on Driving in the Left Lane

Texas DPS has ramped up its enforcement of left-lane citations in the last several years. DPS officials have noted that driving slowly in the left lane is a hazard and requires enforcement.

Whether it was a car wreck, a truck accident, or a wrongful death, if you or a loved one have been seriously injured on a Texas highway, contact our experienced Personal Injury Attorneys today for a free consultation and case evaluation.

Jun 04
9
Chest Pain Auto Accident Reasons

Reasons for Chest Pain After an Auto Accident

By | Car Wreck

Why Do I Have Chest Pain After an Auto Accident?

Chest Pain Auto Accident ReasonsCar accidents are common sights on Texas roads. Whether on busy highways or country backroads, accidents happen daily. Even though improvements in vehicle safety features continue to lower a driver’s risk of injury or death on roadways, the chances of completely avoiding an injury as a result of a collision are pretty slim. Most drivers will walk away with at least some bruising, small cuts and scrapes, or whiplash. These drivers would most likely consider themselves lucky to have avoided more serious injuries. Unfortunately, though these “minor” injuries are easily seen, they may not necessarily be the complete extent of a person’s injuries.

Should I Be Worried if I Experience Chest Pain After a Car Wreck?

Following an accident, a person may begin experiencing chest pain. If his external injuries were little more than some scrapes or bruises, he may be inclined to attribute the chest pain to the similar soft tissue pain that many experience in even low-speed accidents. This thinking could be very dangerous. Pain in your chest following an accident could indicate an injury to your ribs, your lungs, or even your heart. You should take every pain symptom seriously and get a full and thorough examination by a doctor to rule out any great chest injuries that could have occurred.

Common Causes of Chest Pain Following a Car Wreck

Having handled several hundred car accident cases, we have seen our share of chest injuries following a car crash. Some of the more common causes are:

  • Muscle Strains

  • Bruised Ribs or Broken Ribs

  • Internal Injuries (Heart and Lungs)

Chest Pain Injuries from Seatbelts and Airbags

The number of lives saved by seatbelts and airbags is undeniable. However, each year seatbelts and airbags are responsible for face, neck, and chest injuries. The impact to a chest from a sudden stop can break ribs and bruise delicate heart tissue. In the latter case, symptoms may not appear for weeks or months following an accident and can be incredibly painful when they do appear.

What to do if You Experience Chest Pain After an Auto Accident

If you are experiencing any chest pain following a car accident in Texas, it is extremely important that you seek medical attention quickly. Left untreated, chest pain can develop into more serious, sometimes life-threatening, conditions. If you or your loved one has suffered personal injuries due to a car wreck, please speak with an attorney. Our attorneys can help point you in the right direction to the best doctors that can help you with your pain and suffering. We do not charge a fee on injury cases unless we collect damages for you. Call us today at (817) 993-9249 or contact us online.

Jan 07
7
E-Cigarette Exploding Battery Texas

Pants on Fire! Who is Liable if your E-Cigarette Explodes in Your Pocket?

By | Personal Injury

Vape Batteries and E-Cigarette Explosions:
Who is responsible for injuries or deaths caused by an “Industry-Wide” problem?

There has been plenty of debate on the health and safety effects of “vaping”, but the most dangerous aspect of electronic cigarettes is likely the potentially explosive lithium-ion batteries used to power them.

Since 2009, there have been over 200 reported incidents of fires and explosions, and at least one death, caused by exploding e-cigarettes in the U.S. As more products enter the market, the number of these explosions will continue to rise, as will the number of injuries and deaths.

If you or a loved one have been injured by an exploding e-cigarette, you may be entitled to compensation from the manufacturer or seller of the device. Our law firm has represented individuals that have suffered injuries from an exploding battery and we know how to pursue compensation.

What is an E-Cigarette?

An “electronic cigarette” refers to several different types of devices within a larger class. These devices come in varying shapes and sizes and are sometimes called e-cigs, personal vaporizers (VPs), mods, electronic nicotine deliver systems (ENDS), and vape pens. They are powered by lithium-ion batteries which produce a heated vapor that looks like smoke.

Risk of Injury Due to Explosion of Lithium-ion Batteries in E-Cigs is Exceedingly Dangerous

In 2016, the U.S. Fire Administration issued a report concluding that lithium-ion batteries should not be used in e-cigarettes due to the inherent risks of injuries due to explosion and fire. In reaching this conclusion, the agency examined 195 reported cases of e-cigarette battery explosions.

“The e-cigarette/lithium-ion battery combination presents a new and unique hazard to consumers. No other consumer product places a battery with a known explosion hazard such as this in close proximity to the human body. It is this intimate contact between the body and the battery that is most responsible for the severity of the injuries that have been seen.”

(McKenna, Lawrence. “Electronic Cigarette Fires and Explosions in the United States 2009-2016.” National Fire Data Center, U.S. Fire Administration.)

Who is Responsible if a Vape Pen Explodes?

In Texas, the manufacturer is generally responsible for the safety of its products. Only when the manufacturer is insolvent or beyond the reach of Texas courts can the sellers be held liable. Tex. Civ. Prac. & Rem. Code Sec. 82.003 (“Liability of Nonmanufacturing Sellers”).

Because most e-cigarettes and lithium-ion batteries are produced in China, it is often the vape shop or other retailer that sold the defective product who is responsible for the damages. As such, consumers should always purchase from reputable retailers who are more likely to be financially solvent and/or have insurance to cover the damages.

Under Texas law, any party who participated in the design, manufacture, or marketing of a defective product may be held responsible for damages. In the case of e-cigarettes, these products could be considered fundamentally defective because almost every product currently on the market requires the use of a lithium-ion battery, which is known to be potentially deadly.

Many of the risks associated with lithium-ion battery explosions occur due to improper handling of the devices. Because so little information is provided to consumers about proper handling, those responsible for the marketing of the devices may still be liable for any damages as a result of injuries or death.

If you or a loved one has been injured or killed by an exploding e-cigarette, it is important that you consult with a qualified attorney as soon as possible who can give you advice specific to your case. Our team of experienced attorneys is here to help.

Jul 29
4
Personal Injury Statute of Limitations

Time Limitations for Personal Injury Claims in Texas

By | Personal Injury

Personal Injury Statute of LimitationsIf you’ve been injured by someone else’s negligent or intentional act, you have a set amount of time to file a lawsuit seeking a remedy for your injury. This time limit is known as a statute of limitations and it is outlined in Chapter 16 of the Texas Civil Practice & Remedies Code.

The Statute of Limitations is Two Years for Most Claims

In most instances, the statute of limitations for personal injuries is two years from the date of the accident or injury, meaning a lawsuit must be filed no later than two years from that day. Lawsuits filed after this two-year period will be summarily dismissed unless you meet one of the few exceptions to the statute. Missing this statutory deadline means giving up the ability to ever pursue a remedy (also known as damages) for your injury claim.

There Are Very Few Exceptions to the Limitations Period

If you are under a legal disability the statute of limitations is tolled (suspended) until the disability is removed. These legal disabilities include:

  • Minor person under the age of 18
    • The statute is tolled until his/her 20th birthday, two years after reaching the age of majority (Weiner v. Watson, 900 S.W.2d 316, 321)
  • Persons of “unsound mind” who are “unable to participate in, control, or understand the progression and disposition of a lawsuit.” (Grace v. Colorito, 4 S.W.3d 765, 769)
    • It would have to be proven to the court that a person did not have the “mental capacity” to pursue litigation for a definite period of time.

If you believe you have a personal injury claim it is better to seek out the advice of a qualified personal injury attorney sooner rather than later. A Texas personal injury attorney can help you evaluate your claim’s statute of limitations and take steps to protect your rights.

Jul 24
2
Accident Report Police Report

How to Obtain an Accident Report in Texas

By | Car Wreck

Accident Report Police ReportIf you or a loved one has been injured in an accident, an experienced Personal Injury Attorney can assist in obtaining all relevant records, including accident reports. Accident reports contain basic but necessary information needed to begin a personal injury claim.

Why Do Law Enforcement Officers Write Accident Reports?

Under Texas law, a law enforcement officer investigating a motor vehicle accident must submit a written report of any accident involving injury, death, or property damage believed to be greater than $1000 within ten days of the date of the accident (Texas Transportation Code, Subchapter D, Sec. 550). If no injuries occurred, or if the damage to property was less than $1000, no report is required.

Who Can Get an Accident Report?

The Texas Transportation Code states that accident reports can be made available to any of the following persons/entities after submitting a written request and paying any required fees:

  • any person involved in the accident;
  • a person authorized to represent any person involved in the accident;
  • a driver involved in the accident;
  • an employer, parent, or legal guardian of a driver involved in the accident;
  • the owner of a vehicle or property damaged in the accident;
  • a person who has established financial responsibility for a vehicle involved in the accident;
  • an insurance company that issued an insurance policy covering a vehicle involved in the
    accident;
  • an insurance company that issued a policy covering any person involved in the accident;
  • a person under contract to provide claims or underwriting information to a person with financial responsibilities for the vehicle or to an insurance company that issued a policy for a vehicle damaged in the accident or an individual injured in the accident
  • a radio or television station that holds a license issued by the Federal Communications
    Commission;
  • a newspaper;
  • any person who may sue because of death resulting from the accident;

How Can I Get My Accident Report?

If you were involved in an accident, and an officer prepared a report, you may obtain a copy of your report by going to the website of the county, city, or municipality in which the accident occurred and submitting a written request. If an accident occurred outside city limits, you can go to the investigating agency’s website, i.e. Sheriff’s Office or Department of Public Safety. Be advised, you may be required to pay a fee for your report. Included below are some helpful links to various DFW city websites where you can request your report or find out more information.

County Websites to Request Accident Reports

DFW Metroplex City Websites to Request Accident Reports

Accident reports are important in personal injury cases because they contain information about the at-fault party, their insurance company, and the responding officer’s determination as to how the accident occurred and who was at fault, all information that an attorney would need to begin pursuing a personal injury claim. If you or someone you love has been injured in an accident, an experienced personal injury attorney can help you obtain your accident report as well as provide you valuable information, support, and guidance while pursuing your personal injury claim.

May 21
7
Personal Injury Case Mediation

What to Expect When Your Personal Injury Case Goes to Mediation

By | Personal Injury

Personal Injury Case MediationAs a Fort Worth personal injury attorney, I have participated in hundreds of mediations where I represented victims of car accidents, work place negligence, defective products, assault, electrocution, and other manner of claims involving injury or death. In my experience, mediation may be the most effective tool for allowing all parties to best understand all aspects and perspectives about their case—the good, bad, and ugly—and to make an informed decision about whether to settle their case or move forward toward trial.

What is Mediation?

Mediation is a guided negotiation facilitated by a neutral third party, the mediator. As defined by Texas Civil Practice and Remedies Code Section 154.023:

(a) Mediation is a forum in which an impartial person, the mediator, facilitates communication between parties to promote reconciliation, settlement, or understanding among them.

(b) A mediator may not impose his own judgment on the issues for that of the parties.

Unlike a judge or an arbitrator, a mediator does not have the power to decide a case or to enter a judgment or award. Neither can a mediator force the parties to accept a settlement. Rather, the role of the mediator is to help open the lines of communication between the parties in a confidential setting.

What to Expect During a Personal Injury Mediation

Mediations frequently begin with what’s known as a “joint session” or “caucus.” The plaintiff, his or her lawyer, the defense lawyer, the insurance adjuster, and the mediator will gather in a conference room. When meeting the defendant’s representatives, I encourage my clients to shake hands and politely introduce themselves. Once the introductions have been made, the lawyers may put on brief presentations emphasizing what they feel is important about their respective cases. The parties do not put on evidence and the plaintiff will not be asked to testify. The parties will then break off into separate rooms with the defendant’s lawyer and adjuster in one room and the plaintiff and his or her attorney in another.

The mediator then spends time with each group getting to know the case and the parties involved. As a neutral third party with no stake in the outcome of the case, a mediator is in the unique position to offer a new perspective on the case. Good mediators will challenge the parties’ assertions and help them look at the case from different angles.

At some point during the process, the mediator will begin to carry demands and offers from one room to the other. The party to make the first “move” will depend on whether a demand or offer was previously extended. If the plaintiff made a demand to which the defendant never responded, the defendant should make the first move and vice-versa. Each party will respond with a counter-demand or offer of their own until the case either resolves or the parties reach an impasse.

Over the course of the mediation, the mediator will push both sides to consider potential weaknesses in their own cases while acknowledging the potential strengths of their opponents’. With each round of offers and demands, the gap between the parties will, ideally, begin to narrow until the parties are able to come together on a final number to settle the case.

What Happens if My Case Settles at Mediation?

If mediation is successful, the mediator will prepare an agreement for the participants to sign that generally sets forth the basic elements of the parties’ settlement agreement with the understanding that a more detailed and thorough agreement will be prepared by the lawyer for the defendant, subject to modifications made by the plaintiff’s lawyer. However, a mediation agreement is enforceable once signed, and either party to the agreement may require the other parties to be bound by its terms.

The mediation agreement will generally include a time frame for the defendant or its insurer to deliver checks to the plaintiff’s counsel for distribution. It is not uncommon, however, for this process to be delayed in order for the plaintiff’s lawyer to negotiate hospital liens, subrogation interests from health insurers, and outstanding medical bills.

What Happens if My Case Does Not Settle at Mediation?

When the parties are unable to reach an agreement at mediation, the mediator may make what is referred to as a “mediator’s proposal” in which the mediator proposes a settlement amount to each of the parties. The parties are instructed to confirm to the mediator by a certain date whether they accept or reject the proposal. The parties’ decisions to accept or reject are kept confidential and made known only to the mediator. Mediator’s proposals can be an effective tool when more time or settlement authority is needed to bring the case to a close.

Mediators will generally make a proposal only in cases where they feel there is at least some chance that both parties will accept. When the gap between the parties is too wide, a mediator’s proposal is unlikely to work and the parties are free to continue litigating the case or they may choose to continue negotiations with or without the assistance of the mediator. Depending on the case, the parties may choose re-mediate as the case gets closer to trial and fewer unanswered questions remain.

Even when a mediation fails to resolve the parties’ disputes, it has been my experience that almost all mediations are worthwhile experiences. The parties generally walk away from a failed mediation with a better understanding of the main issues in their case and are better able to focus their efforts going forward.