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BEATING THE TIMER: STATUTES OF LIMITATIONS AND THE DISCOVERY RULE IN PERSONAL INJURY ACTION

Most people are vaguely aware that there are deadlines associated with the filing of a lawsuit. In general these ‘deadlines’ can be classed under the moniker of statutes of limitation. As the Supreme Court has explained, statutes of limitation are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. Order of R.R. Telegraphers v. Ry. Express Agency, Inc., 321 U.S. 342, 348-49 (1944). Statutes of limitation require that a cause of action be brought, e.g. filed, within a specified period after the day the cause of action accrues. See e.g. TEX. CIV. PRAC. & REM. CODE ‰16.002 “16.004, 16.051.

The Texas Civil Practice and Remedies Code expressly provides for a 2-year statute of limitations as to claims for personal injuries. See TEX. CIV. PRAC. & REM. CODE 16.003. In most cases, a personal injury cause of action accrues when a wrongful act causes an injury. Childs v. Haussecker, 974 S.W.2d 31, 40 (Tex. 1998). Thus, for example, the statute of limitations would generally begin to run as to an automobile accident on the date that the accident occurred, not some later date when a party might learn that he had been injured. In some circumstances, however, the so-called ‘discovery rule’ may operate to defer the accrual of such an action until a later date that an injury is discovered.
Under Texas law, the ‘discovery rule’ provides a very limited exception to statutes of limitations. Computer Assocs. Intl, Inc., v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996).

While accrual of a Texas personal injury action generally occurs when a wrongful act causes an injury, regardless of when the plaintiff learns of that injury, the judicially-crafted discovery rule defers accrual of the cause of action if the nature of the injury incurred is inherently undiscoverable and the evidence of injury is objectively verifiable. Childs v. Haussecker, 974 S.W.2d 31, 36-37 (Tex. 1998). In such a circumstance, the cause of action would not accrue until the plaintiff knows or reasonably should have known of the injury. Id. at 37. In determining whether the discovery rule might apply, however, courts utilize a categorical approach. See Apex Towing Co. v. Tolin, 41 S.W.3d 118, 122 (Tex. 2001).

Using this approach, a court does not determine when a particular injury was actually discovered in a particular case, but rather whether the case is the type to which the discovery rule applies.

If you have a question about whether an injury you’ve suffered might be subject to the discovery rule, you should contact one of the experienced personal injury attorneys at Bailey & Galyen.

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The Truth About the Family Member Exclusion in Texas Automobile Policies

At one time most Texas automobile liability insurance policies included a so-called family member exclusion which foreclosed liability coverage for any claim made by a family member against a family member. This exclusion was included in these policies based upon the insurance industry’s argument that providing coverage for claims by family members against family members would encourage fraud and collusion. In reality, excluded coverage for that class of individuals most likely to be injured, other than yourself, in an automobile collision other family members. It was in this backdrop that the Texas Supreme Court, in 1993, took up the issue of the family member exclusion in the case of National County Mutual Fire Insurance Co. v. Johnson, 879 S.W.2d 1 (Tex. 1993).

In Johnson, a policy holder’s truck collided with another automobile. His wife, a passenger in the truck, was injured and subsequently brought suit against him for negligence. Id. The policy-holder’s insurer, however, denied his request for a defense, stating that “Endorsement 575,” a family member exclusion clause, precluded coverage for a liability claim brought by a family member such as his wife. Id. The policy-holder filed a declaratory judgment action to determine his rights under the policy, while the insurer counterclaimed, asking the court to determine whether Endorsement 575 was valid under Texas law. Id.

On appeal of an adverse judgment in the trial court against the insurer, the Texas Supreme Court held that to the extent the family member exclusion purported to deny a family member’s claim within the minimum liability insurance limits required by Texas law, such exclusion was invalid:

  • Here, the Board’s approval of the family member exclusion results in a situation in which a claimant for damages resulting from an automobile accident is not allowed to recover damages under an automobile liability insurance policy that the legislature statutorily requires to protect such claimants from losses. The exclusion prevents a specific class of innocent victims, those persons related to and living with the negligent driver, from receiving financial protection under an insurance policy. Such a result is clearly contrary to the express legislative mandate. The Board’s action in approving a family member exclusion providing for such scenarios is inconsistent with the statutory purpose of the Act, and thus their approval of the exclusion is ineffective.

Id. at 3.

Hence, in Texas a family member may make a claim against a relative’s motor vehicle liability insurance for injuries received in a motor vehicle accident caused by that relatives negligence up to the minimum liability limited provided under Texas law currently $30,000 for each injured person, up to a total of $60,000 per accident, and $25,000 for property damage per accident. Despite this fact, even today insurers will sometimes purport to deny claims in their entirety under the family law exclusion. So arm yourself with the truth, and be aware that even if your automobile accident injuries were caused by the negligence of a family member, 30/60/25 coverage is still available to you as a matter of law.

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¹This basic coverage is referred to as 30/60/25 coverage.

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Who has a claim when someone is wrongfully killed

When a person is wrongfully killed in Texas due to the fault of another person, company, or a defective product the law provides two types of claims that may be brought. The first is a wrongful death claim which may be brought by the surviving spouse, parents and children of the deceased. Siblings and other relatives may not bring a claim. The damages that may be recovered in a wrongful death claim include pecuniary loss (loss of the care, maintenance, support, services, advice, counsel, and contributions of a monetary nature that the survivor would have received from the decedent), loss of companionship and society (such as loss of love, comfort, and companionship the survivor sustained), mental anguish (emotional pain, torment, and suffering), and loss of inheritance. Of course the person bringing the wrongful death claim will have to have evidence of these damages. Although it is virtually impossible to put a dollar value of some of these things, juries in wrongful death cases are asked to do so.

The second type of claim that may be brought in Texas when someone is wrongfully killed is a survival claim. This claim may be brought by the estate of the deceased or a representative of the estate. The damages that may be recovered include the pain and mental anguish that the decedent experienced before his death, medical expenses for the treatment of the decedent’s injuries, and funeral and burial expenses. When a person dies instantly in an accident and does not incur any medical bills, a survival claim is limited to the funeral and burial expenses. On the other hand if the decedent experienced suffering before death then damages for pain and mental anguish may be awarded.

Exemplary or punitive damages may be recovered in both survival and wrongful death claims if there was gross negligence. The purpose of these damages is to punish the wrongdoer and to deter such conduct in the future.

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Four Die at DuPont Chemical Plant

Chemical Leak Kills Four in Plant Near Houston

A defective valve is blamed in the deaths of four workers at a DuPont facility in La Porte, Texas, around 4 a.m., Saturday, November 15. The federal Chemical Safety Board has sent investigators to the plant. Sources say that the dead included workers who were responding to the leak. Among the dead are two brothers, one of whom died trying to rescue the other. A fifth worker was treated for exposure, but released from the hospital.

The deadly chemical—methyl mercaptan is used to give the familiar rotten egg smell to natural gas, making it more readily detectable. It is also used in fungicides and insecticides. Industry officials say that, in large doses, it can lead to vomiting, loss of consciousness and death. Residents around the plant reported smelling the gas, but also acknowledged that there are funny smells produced by the plant all the time. Officials said that the methyl mercaptan gas spread across the area as a result of the leak, but claim that it dissipated and posed no threat to the public.

This is not the first time in recent memory that DuPont has seen the death of an employee in one of its chemical plants. The company was cited in 2011 by the Chemical Safety Board for allowing a series of preventable safety shortcomings that resulted in the death of a worker at its Belle, West Virginia, facility. A year earlier, the Chemical Safety Board determined the death of a DuPont worker in Buffalo, New York, was attributed to the company’s failure to monitor flammable gas levels in a storage tank scheduled to be welded.

Contact Us

At the law office of Bailey & Galyen, we provide a free initial consultation to every client. To set up an appointment with an experienced Texas family law attorney, contact us by e-mail or call our offices at one of the convenient locations listed below. We will take your call 24 hours a day, seven days a week.

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The Truth Behind the McDonalds Hot Coffee Case

We have all heard it for years. A woman spilled hot coffee in her lap and received a settlement of $3 million. This outrageous miscarriage of justice why we need to change the law and enact more tort reform.

Here are the actual facts:

  • Tella Liebeck, 79 years old, was in the front seat of her grandson’s car after having purchased a cup of coffee. After the car stopped, Mrs. Liebeck began removing the lid while the cup was between her legs.
  • The cup tipped over, pouring scalding hot coffee onto her. She received third-degree burns over 16 percent of her body and was hospitalized for 8 days while undergoing debridement of her burns, surgical skin grafting, scarring, and disability for over two years.
  • Despite these injuries, Mrs. Liebeck offered to settle with McDonalds for $20,000.
  • The jury awarded her $200,000 in compensatory damages. This was reduced to $160,000 by the judge because the jury found her 20 percent at fault.
  • The evidence showed that McDonalds kept its coffee at 180 to 190 degrees, despite knowing that coffee at that temperature, if spilled causes third-degree burns in 2 to 7 seconds and despite a warning from the Shriner’s Burn Institute that beverages above 130 degrees cause scald burns.
  • From 1982 to 1992 McDonalds burned more than 700 men, women and children, many of whom filed claims and lawsuits.
  • McDonalds witnesses testified that, despite all of these burn injuries, they had no intention of turning down the heat.
  • The evidence showed that McDonalds made approximately $1.35 million per day from the sale of coffee.
  • The jury decided to send McDonalds a message to stop burning people by awarding punitive damages equal to two days sales of coffee $2.7 million.
  • The punitive damages award was reduced to $480,000 by the judge and Mrs. Liebeck eventually settled out of court with McDonalds for less than $600,000.

For the past 22 years big business and the insurance industry have conducted massive propaganda campaigns to distort the truth in an attempt to limit their responsibility for injuries, to put caps on damages, and to limit people’s ability to seek redress in the courts. As we can see, the actual facts of the case do not warrant any change in the law or caps on damages. Unfortunately, these facts do not fit into a quick sound bite or on a bumper sticker.

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