Houston Personal Injury Blog

The Hispanic National Bar Association (HNBA) recently announced the launch of its new Veterans Legal Initiative Program ("Veterans Initiative"), in an effort to provide free legal services to the men and women of the American armed forces and their families. The Veterans Initiative is part of HNBA National President Benny Agosto, Jr.'s "Year of the Advocate" and will organize HNBA members to volunteer at local Departments of Veterans' Affairs, American Legion posts, and Veterans of Foreign Wars locations, as well as opening their own free legal clinics.

The Veterans Initiative seems even more appropriate now considering the recent return of the final American troops from Iraq, after nearly nine years of active duty. "The transition veterans face upon returning from war can seem overwhelming due to looming legal hardships," said National President Benny Agosto, Jr. "For these veterans, relief from that burden can come from the opportunity to talk to a lawyer one on one. We, as lawyers, are in the unique position to provide help to these veterans. The time we volunteer is a small way to show our appreciation for the sacrifices these veterans make in service of their country."

Through the help of volunteer attorneys, the Veterans Initiative will serve the veteran population in all of the HNBA's 19 regions. The HNBA will provide training to its members and in turn these volunteers will serve as advisors and counselors to any veteran or spouse of a deceased veteran. The volunteer attorneys will counsel on a number of areas of the law including family, wills and probate, consumer, real estate and tax law, as well as disability and veterans benefits. No appointment will be necessary and those veterans who need ongoing legal representation and who qualify for legal aid will be referred to a pro bono attorney who can handle their case.

After tremendous frustration and debate, the city of Houston was obligated last year by an overwhelming majority of its voters to end its contract with red light camera manufacturer American Traffic Solutions (ATS) and permanently shut down the controversial cameras. ATS quickly brought suit against the city for breaching their contract which was scheduled to end in 2014. And now, after months of debates, the two sides have reached a settlement agreement in which the city could pay ATS more than $12 million in damages for breaching their agreement and removing the cameras.

If the Houston City Council approves the pending settlement agreement, the city will be forced to pay ATS $4.78 million up front, with a potential pay-out possibly rising to $12 million over the next three years. However, the city does not intend on spending valuable tax dollars to compensate ATS. Rather, the city currently plans on using funds from previously collected fines that are in escrow and the approximate $25 million the city is still owed in outstanding red light camera fines to pay the settlement. In return for the payments, ATS has agreed to immediately remove all of its cameras from Houston intersections.

The city's legal department is currently urging the city council to approve the settlement, which took the opposing parties two mediations and weeks of negotiations to finalize. ATS general counsel and corporate secretary, George Hittner, elaborated on the settlement agreemennt, stating, "I think it's in the best interest of both sides to put this matter behind them, and let's move on."

According to an article in Accounting Today, the IRS has released final regulations relating to the exclusion from gross income for amounts received on account of personal physical injuries or physical sickness. The final regulations in TD 9573 reflect amendments under the Small Business Job Protection Act of 1996 and affect taxpayers who have received damages on account of personal physical injuries or physical sickness and taxpayers paying these damages. The regulations take effect on January 23, 2012. They delete an earlier requirement that to qualify for exclusion from gross income, damages received from a legal suit, action, or settlement agreement must be based upon "tort or tort type rights." The regulations provide, instead, that the Section 104(a)(2) exclusion may apply to damages recovered for a personal physical injury or physical sickness under a statute that does not provide for a broad range of remedies, and that the injury need not be defined as a tort.

A fiery explosion injured three workers at an oil and gas well site near Pearsall, Texas on January 19th, 2012. Preliminary information indicates that welders were working near a truck that was unloading saltwater that contained liquid hydrocarbons. Sparks from the welders caused the explosion when they ignited vapors that were created during the truck's unloading process. Ignited oil from the damaged well spread and burned several nearby trailers. The fire burned for several hours before it was extinguished by the Pearsall Fire Department around 9pm on Thursday night. Further updates on the conditions of the injured workers have not been reported following their transportation to the hospital.

In a case last month, the Texas Supreme Court ruled that an oil company which substantially underpaid royalty owners would not be liable to them for the difference. The Court criticized the royalty owners for not looking in various public records to discover the oil company's wrongdoing.

The case was Shell Oil Company, et al. v. Ross, ___ S.W.3d ___ (Tex. 2011)(12/16/11). Shell had entered a lease with a plaintiffs' predecessor, part of which was later placed in pooled unit. There was production in both the unitized and non-unitized parts. Shell failed to pay the proper royalty and also made false representations on monthly royalty statements. It admitted at trial that it had "made a mistake" for which it had no explanation. But it alleged that the royalty owners' claim should be barred by the statute of limitations. At trial, the jury found that there had been fraudulent concealment on the part of Shell.

The Supreme Court ruled "that the fraudulent concealment doctrine does not apply to extend limitations as a matter of law when the royalty underpayments could have been discovered from readily accessible and publicly available information before the limitations period expired." In addition, the "discovery rule does not apply to defer the accrual of royalty owners' claims for underpayments when the injury could have been discovered through the exercise of due diligence." Here, the "pertinent information was readily accessible and publicly available."

"Fraudulent concealment" requires plaintiffs to prove that defendant "'actually knew a wrong occurred, had a fixed purpose to conceal the wrong, and did conceal the wrong.' However, fraudulent concealment only tolls the statute of limitations until 'the fraud is discovered or could have been discovered with reasonable diligence.'" "Reasonable diligence requires that owners of property interests make themselves aware of relevant information available in the public record."

The Court ruled that the royalty owners' reliance on Shell's monthly statements was unreasonable. A landowner's reliance on the oil company's monthly statements "'is not reasonable when information revealing the truth could have been discovered within the limitations period.'" The "large difference" between the royalty payments in the pooled unit and the other portion that was not unitized "triggered [plaintiffs'] duty to investigate the royalty payments." A "royalty owner cannot avoid making a diligent investigation just because there might be a legitimate explanation for a suspicious royalty payment." Information was available to the royalty owners "in the El Paso Permian Basin Index." Also, researching the records of defendant's payment to the State of Texas, another royalty owner, would reveal the prices. Therefore, here, as a matter of law, the royalty owners were not reasonably diligent.

The statute of limitations was also not extended by the "discovery rule," which defers limitations "until the injury was or could have reasonably been discovered. The discovery rule applies 'only when the nature of the plaintiff's injury is both inherently undiscoverable and objectively verifiable.'" The discovery rule did not "defer the accrual of royalty owners' claims for underpayments since the injury was not inherently undiscoverable because the royalty owners could have timely discovered the underpayments through the exercise of due diligence."

Con los grandes avances en la tecnología, no es sorprendente que la ley ha sido lenta en establecer los límites que estas nuevas técnicas y aparatos tienen sobre un individuo. Pero con el caso de Estados Unidos v. Jones pendiente ante la Corte Suprema de Estados Unidos, la ley podría estar más cerca de estar al corriente con la tecnología.

El caso de Jones presenta a la Corte con la oportunidad de definir el nivel de privacidad que uno se espera en relación a la tecnología de vigilancia.

Tradicionalmente, la Corte ha reconocido que una persona tiene la expectativa de privacidad dentro de la residencia cuando la policía quiere vigilar al dueño. Por ejemplo, el uso de tecnología de imágenes térmica para medir la temperatura que emana de una residencia requiere que la policía tenga una orden. Sin embargo, cuando la policía monitorea a alguien al aire libre, como cuando usan una señal para llevar la cuenta de un carro, la corte no ha ofrecido las mismas protecciones. El uso de tecnología GPS para el seguimiento de un carro no es tan claro - por ejemplo, el monitoreo del carro ocurre al aire libre, pero la información que se colecta no es accesible al público.

La Corte Suprema de Estados Unidos no son los únicos que están contemplando el tema de esta nueva tecnología. El Congreso ha propuesto La Acta de Privacidad de Comunicaciones Electrónicas (EPCA) en respuesta al impacto de nuevas tecnologías de vigilancia sobre las comunicaciones privadas y electrónicas. La Acta propone requisitos de orden más estrictos sobre el gobierno cuando intenta interceptar comunicaciones electrónicas.

La decisión de la Corte en el caso de Jones proporcionara la legalidad de estas nuevas tecnologías y la colección de esta información sobre una persona o negocio. La decisión de la Corte Suprema se espera al principio del 2012.

A recently filed lawsuit alleged that Captain Jack's Bar and Grill's negligence contributed to the death of a youth pastor in Washington. Specifically, the estate of Samuel Stephens claims that Captain Jack's Bar and Grill over served alcohol to Joseph McNeil and subsequently allowed him to operate a vehicle.

On September 5, 2010, Joseph McNeil consumed alcohol in excess of the legal limit at Captain Jack's Bar and Grill. As the lawsuit explains, "over the course of many hours, owners and/or employees of [Captain Jack's Bar and Grill] . . . sold numerous alcoholic beverages that were consumed by defendant McNeil." Despite McNeil's inebriated condition, he departed in the early morning hours of September 6, 2010. While McNeil was operating his vehicle, he crossed the center line into the oncoming lane of traffic and collided into Samuel Stephens, killing him. Samuel Stephens was engaged to be married and employed by a church at the time.

Stephens' family alleged Captain Jack's Bar and Grill failed to "properly instruct, educate and supervise [its] employees." Although nothing can replace Stephens, the family hopes that holding Captain Jack's Bar and Grill responsible and accountable will deter other bars from over-serving and thus prevent accidents like this in the future.

A recent auto insurance study concluded that women are better drivers than men. The study found that male drivers are responsible for approximately 80 percent (80%) of all fatal and serious automobile accidents. Women drivers are 27 percent (27%) less likely than male drivers to cause vehicle accidents. In 2007, men were involved in 6.1 million car accidents while women were involved in 4.4 million car accidents.

Further, a 2009 report issued by the Insurance Institute for Highway Safety's Highway Loss Data Institute found that more men than women die each year in accidents on the road. The institute reported that men drive more miles, drive more dangerously and have a higher number of traffic violations than women. However, female drivers are more likely than male drivers to be killed or injured in car accidents of equal severity. Although the study may dispel the long-standing belief that women are bad drivers, when it comes to driving habits, both men and women need to do their best to drive safely in order to avoid serious accidents.