What Hospital Liens Do Not Attach To In Texas– Fort Worth, Texas Insurance Defense Attorneys

The Texas statutes prevent a hospital lien from attaching to the following:

Claims under the Texas Workers’ Compensation Act, the Federal Employees Liability Act; the Federal Longshoremens’ of Harbor Worker’s Compensation Act, and claims against railroad companies who own the hospital in which the injured person is treated, § 55.003(b);

Claims against the injured worker’s own insurance policy proceeds, such as uninsured/underinsured motorists’ coverage and PIP. §55.003; Members Mutual Insurance Co. v. Hermann Hospital, 664 S.W.2d 325, 28 (Tex. 1984) (uninsured/underinsured motorists benefits are not subject to statutory hospital lien);

Hospital liens do not attach to proceeds from wrongful death actions, but they do attach to survival actions. They attach only in cases where recovery for personal injury is sought; they do not attach to judgments or awards for wrongful death;

Hospital liens do not attach to the expenses of treatment of medical problems that are unrelated to the accident at issue but which are attributed to the negligence of another person;

A hospital may not recover pre-judgment interest on the amount of its hospital lien, and, where it intervenes in a suit in order to recover its lien, it may not recover attorneys’ fees, either. Hermann Hospital v. Vardeman, 775 S.W.2d 866, 867-868 (Tex. App. – Houston [1st Dist.] 1989, no writ).

The text of the relevant statutory language is below:

Texas Property Code CHAPTER 55. HOSPITAL AND EMERGENCY MEDICAL SERVICES LIENS

PROPERTY CODE

CHAPTER 55. HOSPITAL AND EMERGENCY MEDICAL SERVICES LIENS

§ 55.001. DEFINITIONS. In this chapter:
(1) “Emergency medical services” has the meaning
assigned by Section 773.003, Health and Safety Code.
(2) “Emergency medical services provider” has the
meaning assigned by Section 773.003, Health and Safety Code.
(3) “Hospital” means a person or institution
maintaining a facility that provides hospital services in this
state.
(4) “Person” does not include a county, common, or
independent school district.

Acts 1983, 68th Leg., p. 3562, ch. 576, § 1, eff. Jan. 1, 1984.
Amended by Acts 2003, 78th Leg., ch. 337, § 1, eff. Sept. 1,
2003.

§ 55.002. LIEN. (a) A hospital has a lien on a cause of
action or claim of an individual who receives hospital services for
injuries caused by an accident that is attributed to the negligence
of another person. For the lien to attach, the individual must be
admitted to a hospital not later than 72 hours after the accident.
(b) The lien extends to both the admitting hospital and a
hospital to which the individual is transferred for treatment of
the same injury.
(c) An emergency medical services provider has a lien on a
cause of action or claim of an individual who receives emergency
medical services in a county with a population of 575,000 or less
for injuries caused by an accident that is attributed to the
negligence of another person. For the lien to attach, the
individual must receive the emergency medical services not later
than 72 hours after the accident.

Acts 1983, 68th Leg., p. 3562, ch. 576, § 1, eff. Jan. 1, 1984.
Amended by Acts 2003, 78th Leg., ch. 337, § 1, eff. Sept. 1,
2003.

§ 55.003. PROPERTY TO WHICH LIEN ATTACHES. (a) A lien
under this chapter attaches to:
(1) a cause of action for damages arising from an
injury for which the injured individual is admitted to the hospital
or receives emergency medical services;
(2) a judgment of a court in this state or the decision
of a public agency in a proceeding brought by the injured individual
or by another person entitled to bring the suit in case of the death
of the individual to recover damages arising from an injury for
which the injured individual is admitted to the hospital or
receives emergency medical services; and
(3) the proceeds of a settlement of a cause of action
or a claim by the injured individual or another person entitled to
make the claim, arising from an injury for which the injured
individual is admitted to the hospital or receives emergency
medical services.
(b) The lien does not attach to:
(1) a claim under the workers’ compensation law of this
state, the Federal Employees Liability Act, or the Federal
Longshore and Harbor Workers’ Compensation Act; or
(2) the proceeds of an insurance policy in favor of the
injured individual or the injured individual’s beneficiary or legal
representative, except public liability insurance carried by the
insured that protects the insured against loss caused by an
accident or collision.
(c) A hospital lien described by Section 55.002(a) does not
attach to a claim against the owner or operator of a railroad
company that maintains or whose employees maintain a hospital in
which the injured individual is receiving hospital services.

Acts 1983, 68th Leg., p. 3562, ch. 576, § 1, eff. Jan. 1, 1984.
Amended by Acts 2003, 78th Leg., ch. 337, § 1, eff. Sept. 1,
2003.

§ 55.004. AMOUNT OF LIEN. (a) In this section,
“emergency hospital care” means health care services provided in a
hospital to evaluate, stabilize, and treat a serious medical
problem of recent onset or severity, including severe pain that
would lead a prudent layperson possessing an average knowledge of
medicine and health to believe that the condition, illness, or
injury is of such a nature that failure to obtain immediate medical
care would in all reasonable probability:
(1) seriously jeopardize the patient’s health;
(2) seriously impair one or more bodily functions;
(3) seriously harm an organ or other part of the body;
(4) cause serious disfigurement; or
(5) in the case of a pregnant woman, seriously
jeopardize the health of the fetus.
(b) A hospital lien described by Section 55.002(a) is for
the amount of the hospital’s charges for services provided to the
injured individual during the first 100 days of the injured
individual’s hospitalization.
(c) A hospital lien described by Section 55.002(a) may also
include the amount of a physician’s reasonable and necessary
charges for emergency hospital care services provided to the
injured individual during the first seven days of the injured
individual’s hospitalization. At the request of the physician, the
hospital may act on the physician’s behalf in securing and
discharging the lien.
(d) A hospital lien described by Section 55.002(a) does not
cover:
(1) charges for other services that exceed a
reasonable and regular rate for the services;
(2) charges by the physician related to any services
provided under Subsection (c) for which the physician has accepted
insurance benefits or payment under a private medical indemnity
plan or program, regardless of whether the benefits or payment
equals the full amount of the physician’s charges for those
services;
(3) charges by the physician for services provided
under Subsection (c) if the injured individual has coverage under a
private medical indemnity plan or program from which the physician
is entitled to recover payment for the physician’s services under
an assignment of benefits or similar rights; or
(4) charges by the physician related to any services
provided under Subsection (c) if the physician is a member of the
legislature.
(e) A hospital lien described by Section 55.002(a) is not
affected by a hospital’s use of a method of classifying patients
according to their ability to pay that is solely intended to obtain
a lien for services provided to an indigent injured individual.
(f) An emergency medical services lien described by Section
55.002(c) is for the amount charged by the emergency medical
services provider, not to exceed $1,000, for emergency medical
services provided to the injured individual during the 72 hours
following the accident that caused the individual’s injuries.
(g) An emergency medical services lien described by Section
55.002(c) does not cover:
(1) charges for services that exceed a reasonable and
regular rate for the services;
(2) charges by the emergency medical services provider
related to any services for which the emergency medical services
provider has accepted insurance benefits or payment under a private
medical indemnity plan or program, regardless of whether the
benefits or payments equal the full amount of the charges for those
services; or
(3) charges by the emergency medical services provider
for services provided if the injured individual has coverage under
a private medical indemnity plan or program from which the provider
is entitled to recover payment for the provider’s services under an
assignment of benefits or similar right.
(h) If the physician is employed in that capacity by an
institution of higher education, as defined by Section 61.003,
Education Code, and the lien does not include the amount of the
physician’s reasonable and necessary charges described by
Subsection (c), the physician has a lien on the cause of action in
the same manner as a hospital under this chapter. The lien is
subject to provisions of this chapter applicable to a hospital
lien, and the physician or the physician’s employing institution
may secure and enforce the lien in the manner provided by this
chapter.

Acts 1983, 68th Leg., p. 3563, ch. 576, § 1, eff. Jan. 1, 1984.
Amended by Acts 2001, 77th Leg., ch. 930, § 1, eff. Sept. 1,
2001; Acts 2003, 78th Leg., ch. 337, § 1, eff. Sept. 1, 2003;
Acts 2003, 78th Leg., ch. 1266, § 1.16, eff. June 20, 2003; Acts
2005, 79th Leg., ch. 728, § 23.001(79), eff. Sept. 1, 2005.

§ 55.005. SECURING LIEN. (a) To secure the lien, a
hospital or emergency medical services provider must file written
notice of the lien with the county clerk of the county in which the
services were provided. The notice must be filed before money is
paid to an entitled person because of the injury.
(b) The notice must contain:
(1) the injured individual’s name and address;
(2) the date of the accident;
(3) the name and location of the hospital or emergency
medical services provider claiming the lien; and
(4) the name of the person alleged to be liable for
damages arising from the injury, if known.
(c) The county clerk shall record the name of the injured
individual, the date of the accident, and the name and address of
the hospital or emergency medical services provider and shall index
the record in the name of the injured individual.

Acts 1983, 68th Leg., p. 3563, ch. 576, § 1, eff. Jan. 1, 1984.
Amended by Acts 1995, 74th Leg., ch. 1031, § 1, eff. Aug. 28,
1995; Acts 2003, 78th Leg., ch. 337, § 1, eff. Sept. 1, 2003.

§ 55.006. DISCHARGE OF LIEN. (a) To discharge a lien
under this chapter, the authorities of the hospital or emergency
medical services provider claiming the lien or the person in charge
of the finances of the hospital or emergency medical services
provider must execute and file with the county clerk of the county
in which the lien notice was filed a certificate stating that the
debt covered by the lien has been paid or released and authorizing
the clerk to discharge the lien.
(b) The county clerk shall record a memorandum of the
certificate and the date it was filed.
(c) The filing of the certificate and recording of the
memorandum discharge the lien.

Acts 1983, 68th Leg., p. 3564, ch. 576, § 1, eff. Jan. 1, 1984.
Amended by Acts 2003, 78th Leg., ch. 337, § 1, eff. Sept. 1,
2003.

§ 55.007. VALIDITY OF RELEASE. (a) A release of a cause
of action or judgment to which a lien under this chapter may attach
is not valid unless:
(1) the charges of the hospital or emergency medical
services provider claiming the lien were paid in full before the
execution and delivery of the release;
(2) the charges of the hospital or emergency medical
services provider claiming the lien were paid before the execution
and delivery of the release to the extent of any full and true
consideration paid to the injured individual by or on behalf of the
other parties to the release; or
(3) the hospital or emergency medical services
provider claiming the lien is a party to the release.
(b) A judgment to which a lien under this chapter has
attached remains in effect until the charges of the hospital or
emergency medical services provider claiming the lien are paid in
full or to the extent set out in the judgment.

Acts 1983, 68th Leg., p. 3564, ch. 576, § 1, eff. Jan. 1, 1984.
Amended by Acts 2003, 78th Leg., ch. 337, § 1, eff. Sept. 1,
2003.

§ 55.008. RECORDS. (a) On request by an attorney for a
party by, for, or against whom a claim is asserted for damages
arising from an injury, a hospital or emergency medical services
provider shall as promptly as possible make available for the
attorney’s examination its records concerning the services
provided to the injured individual.
(b) The hospital or emergency medical services provider may
issue reasonable rules for granting access to its records under
this section, but it may not deny access because a record is
incomplete.
(c) The records are admissible, subject to applicable rules
of evidence, in a civil suit arising from the injury.

Acts 1983, 68th Leg., p. 3564, ch. 576, § 1, eff. Jan. 1, 1984.
Amended by Acts 2003, 78th Leg., ch. 337, § 1, eff. Sept. 1,
2003.

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Insurance Defense Litigation, Nonsubscriber Law, Workers' Compensation Defense

In-Cab of Truck Video Surveillance of Drivers– Texas Trucking Defense Attorneys

Back in the day, truck drivers use to drive all over the country with daily stops in the morning to find a payphone so they could call dispatch to let them know of their location and how much farther they had to go to delivery or next pick up.

Then the pager got introduced to the trucking industry as a great new way of communicating with the driver. Wow, beep, beep, and then a number would come across the screen and the driver would find a payphone to call the 1-800 number. When Qualcomms got introduced many drivers didn’t like it because, they felt they were being spied on. What do drivers’ think now that cameras are being put into the truck cab? Not only to look out the windshield, but also looking at the driver as he drives.

Several reasons the trucking companies are giving for this new technology, for safety and data collecting information on drivers reactions as they drive. Whether it be a hard break, accident or bad weather. In some cases it has help some drivers to be better drivers’ because safety was able to see what occurred at the time in question. At times it just a bad habit, other times the driver is doing things against company policy. The company can help the driver by pointing out the bad habit or decide it is time to part ways…

See rest of article:

https://www.linkedin.com/today/post/article/20140730213815-144411830-in-cab-of-truck-video-surveillance-of-drivers?trk=object-title
www.texasdefensecounsel.com

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Employment Law Defense, Insurance Defense Litigation, Nonsubscriber Law, Workers' Compensation Defense

Reducing Hazards to Temporary Workers– Fort Worth, Texas Insurance Defense Attorneys

In 2013, an enforcement initiative was launched by OSHA focusing on the improvement of safety measures for temporary workers.

OSHA defines “temporary workers” as workers that are supplied to a host employer and paid by a staffing agency. This applies whether the worker’s job is temporary or not. OSHA’s enforcement initiative focuses on identifying temporary workers, evaluating whether they are exposed to any safety hazards, and determining if they have received proper training and protection.

In recent months, OSHA has received a number of reports of temporary workers suffering fatal injuries during their first few days on a job. For example, in December of 2013, an Illinois temporary worker was killed by the forklift he was operating when it fell between the dock and truck. Also in December of 2013, a temporary worker died from a fall after he was caught in a sorter. Lastly OSHA cited Bacardi Bottling Corporation after a 21-year old temporary worker was fatally injured his first day on the job.

Ultimately, OSHA views the protecting of temporary workers as a joint responsibility between host employers and their staffing agency. However, OSHA has shown concern that as a means to avoid meeting all their compliance obligations under the OSH Act and other worker protection laws, some employers are using more and more temporary workers. Temporary workers are often not given adequate safety and health training or explanations of their duties by either the temporary staffing agency or the host employer and are likely more vulnerable to workplace safety and health hazards than workers in traditional employment relationships.

To see article:
https://www.linkedin.com/today/post/article/20140722232211-5310498–reducing-hazards-to-temporary-workers?trk=object-title

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Employment Law Defense, Insurance Defense Litigation, Nonsubscriber Law, Workers' Compensation Defense

Texas Looks At Mandatory Workers’ Comp–Texas Non Subscriber Attorneys

On Tuesday the Business & Industry Committee of the Texas House held a hearing on the voluntary nature of workers’ compensation in Texas. Some effort to make workers’ comp mandatory is made in every session of the legislature . Some effort to make workers’ comp mandatory is made in every session of the legislature and usually goes nowhere. That may be the case in the upcoming session, but it seems the concept will get a harder look this time. The hearing was due to the interim charge from Speaker Joe Strauss to study the “voluntary” nature of workers’ comp. in Texas….

linkedin.com https://www.linkedin.com/today/post/article/20140424155428-48751910-texas-looks-at-mandatory-workers-comp

www.texasdefensecounsel.com

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Employment Law Defense, Insurance Defense Litigation, Nonsubscriber Law, Workers' Compensation Defense

Mental Anguish Damages Require More Than Anxiety and A Bad Night’s Sleep–Texas Insurance Defense Attorneys

In a case grounded in allegations of defamation, The Texas Supreme Court addressed the minimum amount of proof necessary to support damages for mental anguish. The case of Hancock v. Variyam, 400 S.W.3d 59, 62 (Tex. 2013) involved a defamation suit relating to a letter written by a medical doctor alleging that another doctor had a “reputation for lack of veracity” and “deals in half truths.”  The trial court ruled that the letter was defamatory per se and the jury awarded damages, including a total of $30,000 for mental anguish, past and future. The defendant doctor appealed, attacking the legal sufficiency of the mental anguish damages.  Plaintiff’s testimony at trial had been that he was embarrassed, anxious, and could not sleep.  The Supreme Court stated “There is no evidence of mental anguish because evidence that (Plaintiff) experienced some sleeplessness and other anxiety does not rise to the level of a substantial disruption in his daily routine or a high degree of mental pain and distress.” The court therefore held that the plaintiff doctor failed to prove that he suffered a substantial disruption in daily routine or a high degree of mental pain and distress. Also, the plaintiff must additionally show the nature, duration, and severity of the mental anguish.

The court referenced an older Supreme Court case styled Parkway Co. v. Woodruff, 901 S.W.2d 434, 443 (Tex. 1995)  and stated that the plaintiff had not come forward with sufficient proof of actionable or compensable mental anguish. In Parkway v Woodruff, the court had found no evidence of mental anguish damages where the plaintiff had testified that he had “a lot of anguish, a lot of grief” and disappointment and humiliation because they did not rise to the level of a high degree of mental pain and distress or indicate a substantial disruption of his daily routine; Parkway, 901 S.W.2d at 445. The Parkway v Woodruff court had held that “anger, frustration, or vexation . . . do not support the conclusion that these emotions rose to a compensable level”.

Although the Hancock v. Variyam case happened to involve allegations of defamation, the Supreme Court’s interpretation of what is required to prove mental anguish damages has a broad effect across a wide spectrum of causes of action and practice areas. Mental anguish damages can arise in employment law matters, personal injury lawsuits, non-subscriber litigation and elsewhere. It is expected that this decision will continue to impact the way that mental evidence damages are pled, presented, and defended in Texas civil litigation for years to come. The Hancock v. Variyam decision was not entirely surprising, given some of the older case law. But it very squarely served notice to plaintiff lawyers not to try to come forward with evidence that lacks something of a “magic word” threshold. And to those of us defending lawsuits on behalf of employers, businesses and insurance companies, we have some fresh case law to help defeat those marginal mental anguish claims that we frequently see.

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Contracts and Commercial Litigation, Employment Law Defense, Insurance Defense Litigation, Nonsubscriber Law

Personal Injury Damages and the Effect of Unreasonable Medical Management– Fort Worth, Texas Insurance Defense Attorneys

Perhaps years of practicing insurance defense litigation has jaded me.  I am ever more amazed that some of the doctors who routinely treat injured Plaintiffs involved in litigation do not seem to recognize that failing fail to follow a reasonable medical care management approach often leads to much closer scrutiny of the claim and a poor legal outcome for their patients. But even worse for the injured Plaintiff, these doctors set their patient’s on a path that leads to a failed medical outcome. It could be an unnecessary surgery. Or maybe an uncomplicated soft tissue injury that is followed by years of overtreatment and hundreds of therapy and doctor visits. While it is true that more medical damages can give the appearance of a more serious injury, in most of the cases we have defended on behalf of insurance companies, we have seen this approach by the Plaintiffs and their doctors backfire in terms of improvement of case value.  A lack of credibility always seems to follow unreasonable and unnecessary treatment, and Texas juries are typically not sympathetic.

Since the goal of medical treatment is ostensibly to try to return the patient to their pre-injury status , or as close as possible to such status, a well-managed case will include decreased treatment frequency while occupational and daily activities are slowly reintroduced over time. In our experience as lawyers who defend against personal injury lawsuits, we have found that a constant treatment frequency maintained from the onset of care can lead to problems for the Plaintiff attorney and the plaintiff. This is because they are forced to explain this apparent inconsistency, and it is hard to do.

An unreasonable approach to treatment more often than not complicates settlement. When we ask, “how can an accurate prognosis of the patient’s future medical condition be measured if the treatment has remained basically the same?”, we are frequently met with a blank stare or an evasive answer when we cross examine the Plaintiff’s doctor.  Also how can the patient reach their pre-injury status if the stresses of daily life and normal occupational effects were never reintroduced while under treatment?

The medical care rendered by the providers should be reasonable and fall within reasonable guidelines for treatment duration. Of course, an accurate diagnosis and prognosis are always fundamental to a determination of what the medical care needs are and will be in term of future care. The amount of settlement should be based on accurate medical information based on reasonable protocols and treatment guidelines.

Red flags that signal unreasonable medical management, overtreatment, or mismanaged care include: if the patient’s condition gets worse under the care rendered; when the patient’s subjective complaints reach a point where the treatment rendered only makes them feel better for a few days and then they are the same as before medical visit; or if the patient fails to make progress between visits over a lengthy time period, and the clinical potential for further significant healing or improvement is remote.

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Insurance Defense Litigation, Nonsubscriber Law

Premises Liability Issues in Defense of Non-Subscribers in Texas–Fort Worth, Texas Non Subscriber Attorneys

Premises liability claims are often brought against businesses and companies we represent in Texas. Any business which is in possession of a building or land (i.e. a premises) is subject to the possibility of a claim being brought by anyone who is injured while on the premises. Some of the most common forms of premises liability involve slip and fall cases, swimming pool accidents, landlord negligence, elevator accidents, improper maintenance and negligent security.

But Premises liability claims in Texas are not limited to third party claims. Premises liability claims are frequently brought by employees against their nonsubscriber employers. Premises liability can be described as the legal responsibility for an injury (usually a personal injury) that arises out of the ownership or operation of property.  When we represent businesses who have taken advantage of their rights to be responsible non-subscribers, we see premises liability claims arise when an employee is injured by a condition of the employer’s property. This type of claim is in contrast to non-premises claims, which would involve acts or activities of a co- employee, a third party, or even the employee himself or herself.

Premises owners are not guarantors of the safety of its customers or employees.  As a result, an employee is not automatically entitled to recover for his or her injuries simply because the injury occurred on the employer’s property.

To prevail on a premises-liability claim against his or her employer in Texas, an employee must generally prove four elements (notice; unreasonably dangerous condition; failure to exercise ordinary care; and proximate cause).

The four elements are more specifically described as follows:

(1) Actual or constructive knowledge of a condition on the premises by the owner or occupier;

(2) That the condition posed an unreasonable risk of harm;

(3) That the owner or occupier did not exercise reasonable care to reduce
or eliminate the risk; and

(4) That the owner or occupier’s failure to use such care proximately caused the employee’s injury.

Employers who do not subscribe to the Texas Worker’s Compensation Act under Section 406.033 of the Texas Labor Code are denied the common law defenses of assumption of the risk and contributory negligence. But the employee still has to prove that the employer owes a duty to the employee.

In one of the leading cases on premises liability law in Texas,  Brookshire Grocery Company v. Goss, 262 S.W.3d 793 (2008), the Texas Supreme Court reversed a jury verdict and the court of appeals when a grocery store was found negligent after its employee was injured when she attempted to maneuver around a loaded cart in a deli cooler. Because any danger inherent to stepping around such carts is commonly known, the court held that the employer had no duty to warn employees of the risk or provide specialized training to avoid that hazard. In reversing the verdict, the Supreme Court noted that the threshold question was one of duty, and that the employer had no such duty. The court asserted that an absence of duty is not an affirmative defense, stating that it ““depends on a legal analysis balancing a number of factors, including the risk, foreseeability, and likelihood of injury, and the consequences of placing the burden on the defendant.” There was no evidence that it was unusually dangerous for an employer to keep a loaded lowboy in a cooler. Furthermore, to the extent that stepping over a lowboy is dangerous, it held that it is a danger apparent to anyone, including the injured employee.

For Texas non-subscribers, this decision of the Court is a welcome sight. If your company is a non-subscriber to Texas workers’ compensation, we can answer questions you might have regarding premises liability issues and the safety of your employees.

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas non-subscriber defense attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Employment Law Defense, Nonsubscriber Law

Cell Phone Laws for Texas Drivers– Fort Worth, Texas Insurance Defense Attorneys

As insurance defense attorneys in Texas, we have been asked by insurance companies to defend lawsuits on a number of occasions that have involved allegations against the insured driver that cell phone use while driving contributed to or was a proximate cause of a motor vehicle accident.

It is well known that Texas has no statewide law that bans the use of cell phones while driving. However, many local areas prohibit or limit the use of cell phones while driving. Also, Texas law prohibits the use of cell phones while driving if a person has had a learner’s permit for six months or less; if he or she is under 18 years old; or if he or she operates a school bus when children are present; and if the driver is in a school crossing zone.

As the proud owner of a teenage driver myself, I am glad that there are restrictions on his ability to use a wireless communication device at all while driving.  At least the law is trying to do the right thing.

Some of the various jurisdictions in Texas that may have further restrictions on cell phone use while driving include the following: Arlington, Austin, Bellaire, Brownsville, Conroe, El Paso, Galveston, Harlingen, Houston, Magnolia, McAllen, Mission, Missouri City, Mount Vernon, Nacogdoches, San Antonio, Stephenville, Tomball and Universal City.  This is far from an exhaustive list, and the trend is towards more regulation rather than less.

Nearly 25% of all motor vehicle accidents likely involve driver distraction. It is often argued by Plaintiff’s lawyers who we handle cases against that drivers who use cell phones in their vehicles have a higher risk of collision than drivers who don’t, whether holding the phone or using a hands-free device. Sometimes expert witnesses are brought into lawsuits to debate the use of cell phones as a causative factor to the accident.

Chapter 545 of The Texas Transportation Code is the key statutory guidance as far as state regulation of cell phone usage on the rods of Texas. Section 545.425 reads as follows:

Sec. 545.425.  USE OF WIRELESS COMMUNICATION DEVICE; OFFENSE.  (a)  In this section:

(1)  “Hands-free device” means speakerphone capability or a telephone attachment or other piece of equipment, regardless of whether permanently installed in the motor vehicle, that allows use of the wireless communication device without use of either of the operator’s hands.

(2)  “Wireless communication device” means a device that uses a commercial mobile service, as defined by 47 U.S.C. Section 332.

(b)  Except as provided by Subsection (c), an operator may not use a wireless communication device while operating a motor vehicle within a school crossing zone, as defined by Section 541.302, Transportation Code, unless:

(1)  the vehicle is stopped; or

(2)  the wireless communication device is used with a hands-free device.

(b-1)  Except as provided by Subsection (b-2), a municipality, county, or other political subdivision that enforces this section shall post a sign that complies with the standards described by this subsection at the entrance to each school crossing zone in the municipality, county, or other political subdivision.  The department shall adopt standards that:

(1)  allow for a sign required to be posted under this subsection to be attached to an existing sign at a minimal cost; and

(2)  require that a sign required to be posted under this subsection inform an operator that:

(A)  the use of a wireless communication device is prohibited in the school crossing zone; and

(B)  the operator is subject to a fine if the operator uses a wireless communication device in the school crossing zone.

(b-2)  A municipality, county, or other political subdivision that by ordinance or rule prohibits the use of a wireless communication device while operating a motor vehicle throughout the jurisdiction of the political subdivision is not required to post a sign as required by Subsection (b-1) if the political subdivision:

(1)  posts signs that are located at each point at which a state highway, U.S. highway, or interstate highway enters the political subdivision and that state:

(A)  that an operator is prohibited from using a wireless communication device while operating a motor vehicle in the political subdivision; and

(B)  that the operator is subject to a fine if the operator uses a wireless communication device while operating a motor vehicle in the political subdivision; and

(2)  subject to all applicable United States Department of Transportation Federal Highway Administration rules, posts a message that complies with Subdivision (1) on any dynamic message sign operated by the political subdivision located on a state highway, U.S. highway, or interstate highway in the political subdivision.

(b-3)  A sign posted under Subsection (b-2)(1) must be readable to an operator traveling at the applicable speed limit.

(b-4)  The political subdivision shall pay the costs associated with the posting of signs under Subsection (b-2).

(c)  An operator may not use a wireless communication device while operating a passenger bus with a minor passenger on the bus unless the passenger bus is stopped.

(d)  It is an affirmative defense to prosecution of an offense under this section that:

(1)  the wireless communication device was used to make an emergency call to:

(A)  an emergency response service, including a rescue, emergency medical, or hazardous material response service;

(B)  a hospital;

(C)  a fire department;

(D)  a health clinic;

(E)  a medical doctor’s office;

(F)  an individual to administer first aid treatment; or

(G)  a police department; or

(2)  a sign required by Subsection (b-1) was not posted at the entrance to the school crossing zone at the time of an offense committed in the school crossing zone.

(d-1)  The affirmative defense available in Subsection (d)(2) is not available for an offense under Subsection (b) committed in a school crossing zone located in a municipality, county, or other political subdivision that is in compliance with Subsection (b-2).

(e)  This section does not apply to:

(1)  an operator of an authorized emergency vehicle using a wireless communication device while acting in an official capacity; or

(2)  an operator who is licensed by the Federal Communications Commission while operating a radio frequency device other than a wireless communication device.

(f)  Except as provided by Subsection (b-2), this section preempts all local ordinances, rules, or regulations that are inconsistent with specific provisions of this section adopted by a political subdivision of this state relating to the use of a wireless communication device by the operator of a motor vehicle.

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas civil litigation lawyers in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

 

Employment Law Defense, Insurance Defense Litigation, Nonsubscriber Law

When Texans Pierce the Corporate Veil–Fort Worth, Texas Collections Attorneys

Particularly in commercial litigation and collections lawsuits in Texas, situations often arise when an attempt is made to “pierce the corporate veil”.  As attorneys who represent businesses on both sides of commercial disputes, we have had to offensively use corporate fiction arguments and defend against them. We have sued corporate personnel in an individual capacity, sued corporate entities, and defended against claims of corporate veil.

“Piercing the corporate veil” is a legal term that means that the owners of a corporation lose the limited liability that having a corporation provides them, thus the piercing of the veil. When this happens, personal assets can be used to satisfy business debts and liabilities, not just corporate assets.  The result is that individuals start getting named in lawsuits, in addition to the corporate entities they are affiliated with. However, this concept doesn’t apply just to corporations. Any business organization that provides limited liability to its owners is at risk of an offensive piercing of the corporate veil if the owners don’t take important to assure this protection from liability remains in place.

In order to impose liability upon a parent corporation for the obligations of a subsidiary corporation, important factors that Texas courts will consider include:

(1) common stock ownership between parent corporation and subsidiary;

(2) common directors and officers between parent and subsidiary;

(w) common business departments between parent and

subsidiary;

(3) the parent’s incorporation of the subsidiary;

(4) consolidated financial statements and tax returns filed by

parent and subsidiary;

(5) the parent’s financing of the subsidiary;

(6) undercapitalization of the subsidiary;

(7) parent’s payment of salaries and other expenses of subsidiary;

(8) whether parent is subsidiary’s sole source of business;

(9) parent’s use of subsidiary’s property as its own;

(10) the combination of corporations’ daily operations;

(11) lack of corporate formalities by the subsidiary;

(12) whether directors and officers of subsidiary are acting

independently or in the best interests of the parent; and

(13) whether the parent’s employee, officer or director was connected

to the subsidiary’s action that was the basis of the suit.

The history of Texas law in this area is of commercial litigation is exemplified by the 5th Circuit case of Rimade Ltd. v. Hubbard Enterprises, 388 F.3d 138 (5th Cir. 2004), and the pivotal Texas Supreme Court case of Castleberry v. Branscum, 721 S.W.2d 270 (Tex. 1986). The Rimade court stated, “Under Texas law, there are three broad categories in which a court may pierce the corporate veil: (1) the corporation is the alter ego of its owners and/or shareholders; (2) the corporation is used for illegal purposes; and (3) the corporation is used a sham to perpetrate a fraud.” 388 F.3d at 143.

After the Rimade decision was handed down, the Texas legislature enacted section 101.114 of the Texas Business Organizations Code, which had the effect of limiting corporate piercing by codifying the law in this area of law. That seminal section reads as follows:

§ 101.114. Liability for Obligation

Except as and to the extent the company agreement specifically provides otherwise, a member or manager is not liable for a debt, obligation, or liability of a limited liability company, including a debt, obligation, or liability under a judgment, decree, or order of a court.

Section 21.223 of the Texas Business Organizations Code further clarifies and limits the exposure of shareholders and members:

§ 21.223. Limitation of Liability for Obligations

(a) A holder of shares, an owner of any beneficial interest in shares, or a subscriber for shares whose subscription has been accepted, or any affiliate of such a holder, owner, or subscriber of the corporation, may not be held liable to the corporation or its obligees with respect to:

(1) the shares, other than the obligation to pay to the corporation the full amount of consideration, fixed in compliance with sections 21.157-21.162, for which the shares were or are to be issued;

(2) any contractual obligation of the corporation or any matter relating to or arising from the obligation on the basis that the holder, beneficial owner, subscriber, or affiliate is or was the alter ego of the corporation or on the basis of actual or constructive fraud, a sham to perpetrate a fraud, or other similar theory; or

(3) any obligation of the corporation on the basis of the failure of the corporation to observe any corporate formality, including the failure to:

(A) comply with this code or the articles of incorporation or bylaws of the corporation; or

(B) observe any requirement prescribed by this code or the articles of incorporation or bylaws of the corporation for acts to be taken by the corporation or its directors or shareholders.

(b) Subsection (a)(2) does not prevent or limit the liability of a holder, beneficial owner, subscriber, or affiliate if the obligee demonstrates that the holder, beneficial owner, subscriber, or affiliate caused the corporation to be used for the purpose of perpetrating and did perpetrate an actual fraud on the obligee primarily for the direct personal benefit of the holder, beneficial owner, subscriber, or affiliate.

The fact that a defendant must “perpetrate an actual fraud …primarily for the direct personal benefit of the holder, beneficial owner, subscriber, or affiliate?” has had the effect of greatly limiting the success of corporate veil piercing arguments. Actual fraud committed primarily for the “direct personal benefit” of the shareholder or member is arguably required for piercing in Texas, as pertains to contract-related claims.

In the case of In re JNC Aviation, LLC, 376 B.R. 500, 527 (Bankr. N.D. Tex. 2007), aff’d, 418 B.R. 898 (Bankr. N.D. Tex.2009), the court stated that to “to determine if the members of an LLC are liable under the asserted veil-piercing theories, the Court must analyze both the question of whether the facts satisfy any of the asserted veil-piercing strands and the question of whether any of the members caused the LLC to be used for the purpose of perpetrating and did perpetrate an actual fraud on the plaintiff primarily for the direct personal benefit of the considered defendant.”

Therefore, merely alleging “alter ego” is by itself probably insufficient as a matter of law, when the courts are talking in terms of actual fraud. Texas courts recognize the “strict restrictions on a contract claimant’s ability to pierce the corporate veil.” Ocram, Inc. v. Bartosh, No. 01-11-00793-CV2012, WL 4740859, at *2-3 (Tex. App.–Houston [1st Dist.] 2012, no pet.).

While piercing may have lost some traction in Texas commercial disputes, nonetheless, it is always important for owners to undertake necessary formalities and document their business actions. Be sure to provide for adequate business capitalization and don’t comingle personal and business assets. Also, any contracts, leases and legal documents an owner signs should always be in the company name.

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas collections attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Collections and Foreign Judgments, Construction Law, Contracts and Commercial Litigation, Employment Law Defense, Insurance Defense Litigation, Nonsubscriber Law

Federal Motor Carrier Safety Regulations and the Texas Transportation Code: Some Key Sections–Fort Worth, Texas Trucking Defense Attorneys

The Texas trucking industry is highly regulated. Safety measures used by the trucking industry have improved greatly in recent years. The Federal Motor Carrier Safety Regulations and the Texas Transportation Code are the starting points for much of the 18 wheeler accident litigation that takes place here in our Texas courts. As insurance defense lawyers who defend trucking accident cases on behalf of insurance companies and trucking companies, we have seen numerous attempts by Plaintiffs lawyers to utilize many of the regulations below in an attempt to establish the negligence of the truck driver, the trucking company or both.  The breadth of these regulations is large and beyond the broad scope of the entire list of regulations that apply to the trucking industry in general, however some of the key items that trucking companies must be aware of are below:

FEDERAL MOTOR CARRIER SAFETY REGULATIONS:
PART 382 – Controlled Substances and Alcohol Use and Testing –Describes how and when a truck driver should be tested for illegal substances before during and after an accident involving a commercial vehicle.

PART 383 – Commercial Driver’s License Standards – Determines if the driver of a commercial vehicle was qualified to operate the vehicle in use at the time of the accident.

PART 387 – Minimum Levels of Financial Responsibility for Motor Carriers – Establishes the amount and nature of insurance requirements

PART 399 – Employee Safety and Health Standards – Determines if safety and health precautions were taken by the truck driver and the trucking company to keep the roads safe.

PART 397 – Transportation of Hazardous Materials – Determines if any other health risks to the public at large as well as the injured party are present .

TEXAS TRANSPORTATION CODE:
644.152 and 644.052 – Safety Standards – Outlines the safety requirements that must be followed when using a commercial vehicle.

522.101-106 – Alcohol and Drug Use – Describes the methods used to insure that truck drivers are not intoxicated while traveling the roadways in Texas.

545.062 – Following Distance – Following too closely is frequently an alleged contributing cause to a collision and is the subject of a great deal of litigation. It is usually fairly argued by Plaintiffs’ lawyers that 18 wheelers in particular are more difficult to maneuver than automobiles. Great care should be taken by our trucking company clients to train their drivers thoroughly regarding safe stopping and safe following distances.

545.351 – Maximum Speed Requirement – this section is one that Plaintiff attorneys use often to try to prove that a collision was caused by a speeding tractor trailer rig driver. The truth is that frequently it is the cars and other vehicles around our drivers that present the greater danger to the public roads. Most trucking companies, and certainly the ones we represent, do not tolerate speeding by their drivers. Again, the utmost effort should be taken by our trucking company clients to train their drivers thoroughly regarding safe stopping and safe following distances.

550.023 – Duty to Give Information and Render Aid – A person who was involved in an accident should not leave the scene of the accident without offering assistance. Although this seems obvious, it is also the law, and there can be serious consequences in trucking accident litigation cases in Texas for failure to stick around, post-accident.

Our trucking company defense law firm in Fort Worth is familiar with the laws and statutes that affect our truck driver clients, and we will be happy to assist your trucking company with safety training and guidance, with an eye towards accident prevention as well as lawsuit prevention.

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas trucking defense attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

 

Employment Law Defense, Insurance Defense Litigation, Nonsubscriber Law