Texas Trucking Defense and Litigation

Illegal aliens and recovery of future lost wages

Oklahoma Attorney Robert B. Coffee, Jr. presented a paper at the last mini-conference of the Trucking Industry Defense Association.  The paper explored the issue of illegal aliens recovering for future lost earnings in personal injury actions.  He makes the following points:

The question should be framed as follows:  "When the plaintiff is an illegal alien, why should the defendant have to pay for future wages that could only be earned in violation of federal law?"

The jurisdictions are split on the issue of whether an injured illegal alien can recover "lost United States wages".

The following courts held that the answer is no: the New Hampshire Supreme Court; a U.S. District Court in Kansas; the U.S. Middle District of Florida; and, the Second Department of New York Supreme Court’s Appellate Division.

The following courts held that the answer is yes:  the Fifth Circuit (in a case that pre-dated a seminal U.S. Supreme Court which ruled that undocumented workers could not recover damages on an award from the National Labor Relations Board); the U.S. District Court in the Southern District of New York (construing New York law); and, the First Department of the Appellate Division of the Supreme Court of New York (note the contrast with the other New York state court, above).

Stipulating to liability

Defendants don’t usually stipulate to liability, and it goes against our nature as defense counsel. But maybe we should consider it more often, especially when it’s likely we’ll only be able to tag a plaintiff with a small percentage of negligence. There is a big difference between a jury determining damages after hearing four days of incriminating evidence against the defendant, and merely hearing about a plaintiff’s damages without that evidence.

We just had a nasty trucking accident case down in Corpus Christi, Texas where the driver of our eighteen-wheeler decided to attempt a U-turn across four lanes of highway.

During rush hour.

In the fog.

Five cars plowed into the rig. Four of the plaintiffs settled, but we were ready to go to trial on the fifth. Opposing counsel was a very well-known, very capable trial attorney.

We had nothing on the plaintiff. She was an attractive young lady, about nineteen years old. She had no significant prior injuries or medical problems. After the accident she had significant neck injuries, had undergone a neck surgery, was looking at another neck surgery, and suffered a very noticeable scar on her neck. We might have been able to pin 5% contrib on her, on a good day. But the liability facts against us were very bad, and our driver made a bad witness, as drivers often do.

Interestingly - and luckily - the plaintiff‘s attorney had failed or forgotten to plead gross negligence and didn’t realize his mistake until pleading deadlines had passed. In Texas the case law is pretty clear that if gross negligence is not pleaded, and if the defendant stipulates to the negligence of the employee and to course and scope of employment, the plaintiff cannot proceed with allegations of independent acts of negligence against the defendant. This knocks out the plaintiff’s claims of negligent hiring, negligent training, negligent retention, and negligent entrustment - in other words, all of the really inflamatory evidence.

So we stipulated to liability and to course and scope of employment. It took the fire out the case. We filed motions in limine and strong supporting briefs to exclude all evidence of the defendant’s negligence. We filed motions to strike expert witnesses. We limited the case to what would be at most a half-day trial on damages.

The case settled for what we consider a bargain, considering the venue, the talent of the opposition, and the bad liability facts.

E-filing in Texas

Electronic filing, or e-filing, is the process by which you can file court documents electronically over the internet rather than filing traditional paper documents. In order to e-file, you have to convert your documents to electronic files, either by scanning them to PDF format or by “printing” them to PDF format (e.g., composing a document in Microsoft Word and converting the document to PDF format, as opposed to printing it out and scanning it).

E-filing is a hassle when you first begin doing it. Once you figure it out and get used to it, it’s the greatest thing since sliced bread. I predict the whole world will be e-filing within five years. Once you’ve e-filed, the old-fashioned paper way seems archaic and slow.

Many, but not all, of the state district courts in Texas allow e-filing. The problem is that it’s not required. So, if your opposing counsel isn’t registered in the system, you still have to serve him or her in the old fashioned manner. However, if opposing counsel is registered, you can effect service through the system, i.e., via email. This could potentially save you and your clients significant money in mailing expenses. It also can save you from missing deadlines: you can e-file up until midnight instead of having to rush a paper copy to the court at 4:55 p.m.

The Federal Court in the Southern District of Texas has been threatening to require electronic filing of court documents for over a year. On January 1, 2007, they issued a document entitled “Administrative Procedures for Electronic Filing in Civil and Criminal Cases” which sets out their requirements and procedures. They ostensibly require all lawyers practicing before their courts to participate in e-filing. However, they don’t seem to be enforcing that rule yet, which can lead to confusion when filing documents and trying to serve the opposition.