Texas Trucking Defense and Litigation

We have moved our Texas Trucking Defense blog ...

The new address is:

Castagna Scott LLP — Insurance Defense and Trucking Blog

Make sure you bookmark the address, to obtain updated information regarding defense of trucking lawsuits throughout the State of Texas.  We'll also cover the following subjects:

• Trucking and transportation accidents
• Dram shop and liquor liability
• Products liability
• Construction defects
• Construction accidents
• HOA litigation
• Automobile accidents
• Premises liability
• Ladder design and defects
• Racetrack accidents and litigation
• Fitness center and gym litigation
• Bicycle accidents
• Motorcycle accidetns
• Swimming pool safety and defects
• Fabric flammability litigation
• Oilfield negligence
• Employment matters
• Professional malpractice
• Bad faith litigation
• General liability

 

After medical malpractice caps, more doctors moving to Texas

This is not directly related to trucking, but it is important generally to trucking litigation as an indication of the effects of tort reform in Texas. The New York Times today reports that more doctors are moving to Texas after the adoption of medical malpractice caps a couple of years ago:

Four years after Texas voters approved a constitutional amendment limiting awards in medical malpractice lawsuits, doctors are responding as supporters predicted, arriving from all parts of the country to swell the ranks of specialists at Texas hospitals and bring professional health care to some long-underserved rural areas.

The influx, raising the state’s abysmally low ranking in physicians per capita, has flooded the medical board’s offices in Austin with applications for licenses, close to 2,500 at last count.

...

“Doctors are coming to Texas because they sense a friendlier malpractice climate,” he said.

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.