October 2018

accident injury law

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To understand the made-whole rule, we first need to talk about Subrogation. Generally in injury law, subrogation refers to a situation where an insurance company is trying to recoup expenses for a claim it paid when another party should have paid at least some of the amount.

For example, imagine you are hit by a car while crossing the street and the driver speeds off. Since you don’t know who hit you, your insurance company may pay for some or all of the damages and losses you experienced. If later you find out who the driver was and make a claim against his insurance company, it would be subrogation if your insurance company tried to recoup some (or all) of what it paid to you from the second insurance company.

The made-whole rule addresses when an insurance company is entitled to subrogation. In one case, the Supreme Court held that an insurance company cannot seek subrogation until the insured has been made whole. This includes the expenses of litigation and attorney’s fees. The Court reasoned that in a situation where either the insured or the insurer must sustain a loss, it should be the insurer that goes unpaid because that is the risk the insured has paid it to assume.

Since that case, the Made-Whole Rule has been developed and grown into a strong protection for injury victims. The basic idea is that in a situation where someone (either the insurer or the insured) is going to suffer a loss, it should be the insurer. And because of that, where there isn’t enough money from the person who caused the damage to go around, it should first go to the victim until his losses have been repaid, and then go to repay the insurance company. Because this is a very pro-victim rule, it is controversial. If you have questions about the made-whole rule, please call me today to discuss your specific situation.

Incompetent Defendant Appeared Pro Se

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Here’s a tip for all you trial attorneys out there: don’t proceed to trial against a (possibly) mentally incompetent defendant in her late eighties appearing pro se. And remember your Rule 10 notices. At least that’s the message from the Supreme Court recently.

The case is procedurally complicated enough that I won’t repeat it here, but here’s the gist of it: Juanita Stands was driving in “advanced twilight” on  the highway. Clark Rice was driving a tractor on that same road, and his tire extended in Stands lane. The tractor’s lights were not luminated and Stands struck the rear tire, which sent her spinning into Vianna Stewart, who was traveling in the opposite lane. Stewart and Stands sued everyone (inlcuding, initially, each other) and also named Rice’s mother, Edythe on the theories of respondeat superior and negligent entrustment.

At least initially, the Rices were represented by counsel. However, as the case drug on (it took five years until trial apparently) they could no longer afford their defense. In January of 2011, Clark’s counsel filed a motion to withdraw based on his inability to pay. Clark consented to the withdrawal, and the Court granted the motion. On January 10, 2011, Stewart served a Rule 10 notice on him.

On January 21, 2011, Edythe’s attorney filed a Motion to Withdraw and Motion to Continue. In addition to his request to withdraw, the attorney submitted an affidavit raising significant questions about Edythe’s mental health and requesting that a conservator be appointed prior to any further proceedings because it would be “an injustice to require [an] incompetent woman to proceed to trial without representation.”

On February 4, 2011, her attorney filed a motion asking the Court to allow Edythe to testify by deposition, again raising concerns about her mental health. On May 6 the District Court granted the motion to allow her to testify by deposition and on May 18 it allowed her attorney to withdraw. Both Clark and Edythe proceeded to trial pro se (without an attorney). Edythe was (mostly) physically present, but did not present any evidence or participate in the trial.

A bench trial was conducted, and the District Court concluded that Clark was negligent per se for violating three traffic statutes, and that each violation was an actual and proximate cause of the resulting collisions. Further, Edythe was found vicariously liable for the injuries because Clark was her agent and he was acting within the scope of his duties at the time of accident.

However, on appeal Edythe obtained counsel. The Supreme Court found that “that [Court’s] failure to evaluate Edythe’s competency prior to trial raises significant questions of the fundamental fairness of the proceedings with respect to her unrepresented participation in the trial.” Id., ¶ 31. The Court also ruled that the failure to provide Edythe with a Rule 10 notice “prejudiced her substantial rights and constitutes reversible error.” Id. ¶ 35. The Supreme Court passed on deciding the due process claims Edythe raised on appeal because the first two issues were already dispositive.

The Court reversed the judgment against Edythe and remanded the case for an evaluation of Edythe’s need for a conservator and new trial as to her vicarious liability only.

Wrongful Death

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A claim for wrongful death describes a cause of action that may be brought be the heirs of the decedent (the person who passed away). In its most basic form, wrongful death is when someone dies because of the actions of another person. Fatal automobile accidents, botched surgeries, even rock climbing accidents can all lead to wrongful death claims.

One purpose of a wrongful death case is to compensate the heirs for the harm or damages they personally suffered as a result of the death. Generally, in a wrongful death claim, the heirs may recover for loss of consortium, loss of comfort and society, and the value of the contributions the decedent would have made to the heirs’ support education, training, and care. This last section is sometimes described as lost wages, but that’s not entirely correct. Because wrongful death is focused on the survivors, that section actually deals with what percentage of the decedent’s earnings could have been passed on to the survivors.

The damages for wrongful death are the damages of the heirs which occur because of the wrongful death. They are not damages that were sustained by the decedent. Those may be recovered as well, but in a separate action known as a survivorship claim. These two claims are closely related, but focus on different aspects of the law.

Ironically, the survivorship action focuses on the person who died while the wrongful death claim is for the living.

If you believe you have a wrongful death claim it is important that you act quickly. Waiting too long can impair your attorney’s ability to investigate and develop your case, but it could also completely end things before they even start. Texas has a two year statute of limitations on wrongful death cases. This means that a wrongful death claim mud the brought within 2 years or it can never be pursued. The time starts running upon the death of the victim.

But why wait at all? Most wrongful death attorneys offer a free initial consultation to discuss your case and explain your rights. Obviously I hope you will contact the wrongful death lawyers at our firm, but whatever you decide, please see someone sooner than later.