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…
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.
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.
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….
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.
In a case grounded in allegations of defamation, The Texas Supreme Court addressedthe 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.
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.
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.
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.
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.
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 Regulationsand 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.
In Weeks Marine, Inc. v. Standard Concrete Products, Inc., 737 F.3d 365 (2013),theU.S. Fifth Circuit Court of Appeals addressed issues relating to indemnity agreements and the scope of the duty to defend. The court discussed the applicability of the “eight corners” rule, and concluded that there was no duty to indemnify where “the same reasons that negate the duty to defend likewise negate any possibility that the [indemnitor] will ever have a duty to indemnify”.
The court reviewed an Agreement, stating that the requirement under Texas law obligating the subcontractor to indemnify the general contractor only with respect to claims related to workmanship of the subcontractor’s product did not require the subcontractor to defend the general contractor in the underlying action brought by an employee of the subcontractor under the circumstances of this case. Here, the action attributed the accident to the construction process used by the employee and his crew and, alternatively, the action alleged defects in certain steel modules that were a component that subcontractor used to make its product, but were not the subcontractor’s product itself.
The court stated that, unlike the duty to defend, the duty to indemnify “is triggered by the actual facts that establish liability in the underlying lawsuit.” Guar. Nat’l Ins. Co., 211 F.3d at 243. As a result, the court may consider facts outside of those alleged in the complaint to determine the scope of the duty to indemnify. Gilbane Bldg. Co., 664 F.3d at 594.
Under Texas law, the duties to defend and indemnify “are distinct and separate duties” and “enjoy a degree of independence from each other.” D.R. Horton–
Texas, Ltd. v. Markel Int’l Ins. Co., 300 S.W.3d 740, 743–44 (Tex.2009). The “duty to defend” is the broader of the two. Northfield Ins. Co. v. Loving Home Care, Inc., 363 F.3d 523, 528 (5th Cir.2004).
The duty to defend is “circumscribed by the eight-corners doctrine,” so that it is determined solely by the language of the indemnity provision and the allegations in the third-party pleadings. Gilbane Bldg. Co. v. Admiral Ins. Co., 664 F.3d 589, 594 (5th Cir.2011). Moreover, the court must review the third-party pleadings “without regard to the truth or falsity of those allegations.” GuideOne Elite Ins. Co. v. Fielder Rd. Baptist Church, 197 S.W.3d 305, 308 (Tex.2006). The duty to indemnify, by contrast, “is triggered by the actual facts that establish liability in the underlying lawsuit.” Guar. Nat’l Ins. Co. v. Azrock Indus. Inc., 211 F.3d 239, 243 (5th Cir.2000).
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 insurance defense 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.
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