Dram Shop Cases: When the Bar Causes the Injury or Death

Dram Shop Case When the Bar Causes the Injury or Death | McKay Law

WHO Can Be HELD Liable?

A provider of alcohol that holds a license to serve alcohol in Texas that overserves a patron who causes an injury or death can be held liable regardless of whether it charges for the alcohol.  

An unlicensed server of alcohol can be liable under the Dram Shop Act only when it charges for the alcohol. 

Social hosts are NOT “providers” that can be held liable UNLESS it is an adult who serves alcohol or allows the consumption of alcohol to minor(s) on the adult’s premises and so long as the adult is NOT the minor’s parent or guardian.    

An injured plaintiff only needs to show that the tortfeasor’s intoxication was the proximate cause (the cause-in-fact) of the plaintiff’s injury.

Bottom Line

DON’T DRINK AND DRIVE
DON’T OVERSERVE PATRONS OF OUR COMMUNITY
DON’T ALLOW FOLKS TO OPERATE A MOTOR VEHICLE AFTER BEING OVERSERVED
DON’T PROVIDE ALCOHOL TO MINORS

McKay Law Proudly Sponsors

MOTHERS AGAINST DRUNK DRIVING (MADD)

How Can I Afford an Injury Lawsuit?

How Can I Afford an Injury Lawsuit? | McKay Law

In practically every circumstance, the issue arises: How can I afford to be involved in this injury lawsuit? Both plaintiffs (the ones who file the injury lawsuit) and defendants ask this question (those being sued).

If you’ve been hurt and someone else is at fault, you may suffer financially as well as physically such as lost wages, medical bills, property damages, and other expenses related to the accident. Your first step should be hiring an experienced personal injury lawyer. They will help you get the best possible settlement from the insurance company and may take the entity that hurt you to court.

Injury Lawsuits in Texas

In Texas, attorneys’ fees can be granted in three ways: by statute, by contract, and/or by equity.

Contract disputes under Chapter 38 of the Texas Civil Practice and Remedies Code, insurance disputes under the Texas Insurance Code, and consumer lawsuits under the Texas Deceptive Trade Practices Act are all examples of statutory bases.

A contractual basis is one in which the parties have incorporated wording into their written contract that allows one party – the winner, though I suppose they might provide for both parties regardless of the outcome – to recover fees or fess up to a specified sum. Finally, the Texas Declaratory Judgment Act provides an equitable foundation for awarding a reasonable and equitable sum to the victor in a disagreement over contractual parties’ rights claims.

The tort claim is noticeably absent from the actions allowing attorney’s fees to be recovered. A tort suit occurs when a plaintiff is the victim of a civil wrong that results in loss or harm and exposes the wrongdoer to accountability as a defendant. Personal harm resulting from a car accident, fraud, defamation, assault, and a variety of other mishaps or wrongdoings are all common torts. A contract violation isn’t on the list.

Payment for legal services must be agreed upon between the attorney and the client, and it must always be in writing to avoid ethical concerns and a disagreement between the parties. Many of your tort matters are handled on a contingency basis. In a contingency fee agreement, the attorney often pays for expenditures up front –– and the attorney is paid solely on the basis of the outcome.

In other words, if the plaintiff wins, the attorney receives a share of the settlement, which is often between 33 and 40 percent. Because the attorney is paid for time and effort, a contingency fee structure assures that the attorney is both frugal and continuously analyzing the possibility of success. Many individuals and small businesses simply cannot afford to pay by the hour, which drives up the expense of litigation, so contingency fee compensation arrangements are negotiated.

Concerns for Injury Lawsuit

Texas Injury Lawsuits | McKay Law

When the parties anticipate that a legal issue may take a while to resolve, contingency fee billing is often used. Again, the contracting parties are free to use their imaginations, but it is always vital to put it in writing so that there are no misunderstandings about the attorney’s and his or her client’s rights.

When the lawsuit begins, make sure there are no unresolved concerns between you and your attorney. Your attorney/client relationship must include a contingency versus hourly fee structure, which must be in writing.

Contact Us For A Free Case Evaluation 

The attorneys at McKay Law focus their practice on aggressively representing the victims of 18-wheeler and tractor-trailer truck accident cases throughout East Texas, including Sulphur Springs, East Texas, and statewide.

If you have a family member or loved one you believe has been injured or fallen into poor health as a result of an accident, contact McKay Law to review your case and learn if you have a viable cause of action against the negligent party, property owner, the person causing the accident or the insurance carrier.

Call (903) 999-2653 or submit your case for a free case review. You do not pay unless we win!!

School Bus Safety: Sensors & Seat Belts Necessary

Sensors and Seat Belts Necessary for School Bus Safety | McKay Law

In the state of Texas, there are approved seat belt laws for school bus safety. According to the new regulations, all buses manufactured after 2018 must-have 3-point seat belts. What took so long for our elected officials?

There is one additional safety element that all buses must have – a sensor.

Sensors have been a standard option on automobiles for since 2007.. They are situated at the corners and in the back of the vehicle. When the bus is within a few feet of an object– or when someone walks by – the sensors start ‘beeping,’ and then give a constant beep within a foot of collision. Bus drivers may rely on these since they assure that not only do they have enough room to maneuver, but they also let the bus driver know when they don’t.

A lawsuit in which a school bus driver let students off at a stop was recently settled. Unaware that one of the children had dropped his book, the child stooped down in front of the bus to grab it. The driver was unaware the child had stooped down in front of the bus and was inadvertently hit by the bus when it started up again.

School Bus Safety Sensors

A sensor should be required, not optional, in buses and vehicles that are intended and operated for continuous passenger loading and unloading. The purpose of sensor safety features is to keep passengers safe. It never assumes that humans are perfect or that the automobiles they drive are completely safe. A school bus safety feature is intended to avoid accidents – or to reduce injuries – in circumstances where we anticipate someone will do something or fail to do something – negligently or not – causing harm to someone or something.

School Bus Safety | McKay Law

School Bus Safety Seat Belts

Seat belts are required not because accidents do not occur, but because they do. The fact that it was ‘the other guy’s fault’ doesn’t make it any easier to swallow. We have seat belts because we wish to reduce injuries and/or avoid death, regardless of who is at blame. When our greatest efforts or other school bus safety measures fail to prevent an accident entirely, our lives are filled with efforts to mitigate the consequences of the tragedy.

Cost is a crucial factor in most risk vs. benefit analyses for school bus safety features. Sensors are inexpensive. This is especially true given the small size of many of the schoolchildren that move about the outsides of buses. When a safety measure can be added quickly and inexpensively and prevents significant injury or death, it should not be considered optional.

Because we as parents have not raised our voices loudly enough on this subject, sensors are not always required in every school district. We can, and should, do far better.

Avoiding School Bus Stop Accidents As A Driver

Studies conducted in cities across the country have found that over half of all school bus accidents are preventable. There are a handful of simple actions drivers can take to avoid causing a school bus accident while behind the wheel. Precautions include:

  • Putting down cell phones, makeup, food, etc. while driving
  • Obeying posted speed limits
  • Remaining vigilant at or approaching a bus stop (children are unpredictable and you never know when a child will dart across the street)
  • Allowing space between you and the bus so that children can safely enter and exit the vehicle

School Bus Safety For Parents & Students

In addition to taking precautions while driving, parents are also encouraged to talk to children about school bus safety. Students should be reminded of proper school bus etiquette including:

  • Never assume that a driver of a vehicle is paying attention
  • Looking both ways before crossing the street
  • Standing away from the curb while waiting for the bus
  • Walking at least 10 feet from the front of the bus before crossing the street
  • Never crossing the street from behind the bus

If you have not already done so, you should take the time to go over bus stop safety with your child. If you can make the time, walk your young children to and from the bus stop and wait with them until the bus arrives. Your child will be able to pick up on important safety precautions when walking with you.

Contact McKay Law For School Bus Accident Help

If you have a family member or loved one you believe has suffered an injury as a result of a school bus accident, contact McKay Law to review your case and learn if you have a viable cause of action against the school district, bus driver, school bus maker or insurance company.

Call (903) 999-2653 or submit your case for a free case review. You do not pay unless we win!!

Texas Supreme Court Changes the Term “Must” in Texas Courts

Texas Supreme Court Changes Meaning of Term Must in Texas Courts | McKay Law

Texas Civil Practice and Remedies Code Section 18.001 & In Re: Allstate 5/7/2021

The Texas Supreme Court issued an opinion on 5/7/2021, In Re Allstate, that will almost certainly result in more personal injury litigation in Texas courts.

In Re Allstate (decided 5/7/2021), the long-standing cost-cutting and time-saving statute is suddenly no longer in effect, removing the need for injury victims to hire expensive medical specialists to testify about the reasonableness and necessity of medical treatment in every instance.

Section 18.001 of the Evidence Code allowed an injured party to present medical expenses by having a custodian sign an affidavit stating that they were reasonable and necessary. The defense could produce a counter-affidavit from a qualified expert within a certain time period if they wanted to contest the reasonableness and necessity. Failure to do so resulted in a waiver of the right to question the care’s reasonableness and need. The following is the rationale for this mandatory exclusion as stated in the statute:

“A party desiring to refute an affidavit allegation must serve a copy of the counter-affidavit on each other party or the party’s attorney of record by.”

What Does “Must” Really Mean?

Dictionary definitions for the word “must” include “be forced to; should (showing necessity), absolutely mandatory.” ‘Must’ is defined in Texas Government Code 311.016 as ‘must’ creates or acknowledges a condition precedent.’

Yes, it is required.

If action “A” is required before action “B,” then logic dictates that “B” cannot exist without “A.” If a party “intending to controvert a claim” MUST do “A,” what is the logical consequence of what happens if they don’t? They don’t get to refute the claim, do they? To put it another way, if you want to do “B,” you must first do “A,” and if you don’t, you won’t get to do “B.” This isn’t a difficult task.

Thousands of trial court cases have acknowledged that the meaning of the term “must” imposes a requirement, as has every Texas court of appeals that has ever construed this statute (which is the vast majority of them).

This has eliminated the requirement for doctors to testify that their costs were reasonable and that the care provided was essential in each and every case. In many circumstances, there are multiple doctors with varying degrees of training. It’s possible that a trial with each of them testifying on reasonableness might drag on for weeks. Section 18.001 was designed to prevent the courts from being overburdened with litigation by requiring the defense, upon proper affidavits presented by the plaintiff, to provide a valid basis for challenging any bill they chose to dispute.

The defense has been denied the right to testify due to a failure to provide reasonable notice in the form of a counter-affidavit signed by a qualified medical expert. This statute was intended to avoid the need for lengthy trials that cost more than they should have. Peril v. Turner, 50 S.W.3d 742, 746 (Tex.App.—Dallas 2001, pet. denied). Not anymore, it appears.

The Texas Civil Practice and Remedies Code, Section 18.001, was overturned.

All that 18.001 accomplished was undone by the In Re Allstate decision. Not only can someone with no medical training analyze a billing database and testify about the appropriateness of the charges, but even if the defendant fails to file a counter-affidavit, they can still surprise Plaintiff at trial by contesting the facts they chose not to counter. “There is no textual support for the idea that the lack of a proper counter-affidavit constitutes a basis to curtail the defendant’s ability to challenge the claimant’s contention that her medical expenses are reasonable and necessary,” they write. 5/7/2021 In re Allstate Really? Please revisit the explanation of the word must from before.

Why did the Texas Supreme Court rule that failing to file counter-affidavits no longer results in contra-evidence being excluded?

The required exclusion of evidence for failing to file a proper counter-affidavit, according to the Texas Supreme Court opinion in In re Allstate, “has no support in the statute’s text.” The absence of a suitable counter-affidavit has no bearing on the admissibility of any evidence under Section 18.001.’ ‘Must’ appears to have lost its meaning.

Imagining a Brave New World Free of Obligations

This decision could spell the end of our ability to rely on any statute or contract that includes the word “must” to establish a requirement. One could argue that this latest Texas Supreme Court judgment holds that just because a statute or a contract requires you to submit notice by a certain date does not mean you are forbidden from doing so. The condition “tenant must offer lessor notice of intend to not renew at least 30 days prior to cancellation” no longer has the effect of barring one from canceling the contract without notice, according to the Supreme Court’s interpretation.

Should vs. Must

“‘Shall’ is a term used instead of ‘must’ when the subject is ‘I’ or ‘us,'” according to the Cambridge Dictionary. If “must” and “shall” are synonymous, the Texas Traffic Code appears to be useless. A driver “must” stop and give assistance…a driver “must” halt before proceeding through a red light. The word “must” appears to have no responsibility under the Supreme Court’s decision in In Re Allstate, so one may argue that shall, which means the same thing, carries no obligation as well.

Summary

In In re Allstate, the Texas Supreme Court completely disregards the statute’s plain text and the meaning of the term “must.” As a result, the judgment defeats the aim of section 18.001 in all future cases, ensuring that medical bills will be a battle in every case. This decision does not bode well for accident victims or the Texas legal system. Hopefully, they will review their position, change their minds and ultimately reverse their decision.

Texas Law Expands Liability for Sexual Harassment Claims effective September 1, 2021

Texas Law expands Sexual Harassment Claims | McKay Law

Sexual harassment is defined as “the making of unwelcome and inappropriate sexual remarks or physical advances in a workplace or other professional or social situation. Governor Abbott recently signed into law sweeping legislative change in workplace sexual harassment. 

The new laws allow claims for sexual harassment to be made against a much broader group of employers in Texas because of two recently passed significant amendments, SB 45 and HB 21, to the Texas Labor Code. Texas, previously an employer-friendly state has voiced its changed ideas with these amendments. The stricter employee-friendly changes will go into effect on September 1, 2021.

Currently, under Texas law, employees at companies with 14 or fewer employers cannot file a sexual harassment claim with the Texas Workforce Commission (“TWC”). Under the new law, employers with as few as one employee can be sued. Further, the current statute of limitations for sexual harassment claims requires an employee to file within 180 days of the harassment. The new statute of limitations will climb from 180 days to 300 days. The new amendments will also now allow employees to file sexual harassment lawsuits against supervisors, coworkers, and other individuals can also be held personally liable for sexual harassment.

 These changes have practical implications for employers:

  • While employees have always had 300 days to file sexual harassment claims with the Equal Employment Opportunity Commission under federal law, this new change allows employees to file those claims with the TWC for up to 300 days. Employers can now be on held liable for state law claims for longer periods of time. The extension of the statute of limitation, however, only applies to alleged harassment that took place on or after September 1, 2021.
  • The most significant change is that all employers that have at least one employee are now subject to sexual harassment lawsuits. This amendment will substantially increase the number of employers that can be sued for sexual harassment in Texas.
  • Finally, the exposure to individual liability has expanded. Prior to this new amendment, employees could sue only their employer for sexual harassment. An individual supervisor could not be sued in his/her individual capacity for sexual harassment; although, claims for assault could be brought against the alleged harasser based on the conduct alleged to support a sexual harassment claim against the employer. That is no longer the case. Starting September 1, 2021, employees can sue their employer and anyone who “acts directly in the interests of an employer in relation to an employee.” Presumably, this includes managers, supervisors, and coworkers because they often act for their employers. It remains unclear whether non-employees (independent contractors, vendors, or volunteers) can be held personally liable if they are acting in the interest of the employer, although the law appears to cover those individuals as well.

The new law only applies to claims of sexual harassment, the old rules apply to all other forms of discrimination, harassment and retaliation.

The new amendments apply only if the employer (or agents) knew or should have known the conduct constituting harassment was occurring and failed to take immediate and appropriate corrective action.

A defense to these claims currently exists with similar requirements; however, the new law places the burden on the employee to prove those allegations. Therefore, professional investigation and knowledgeable and experienced sexual harassment lawyers are a necessity. However, the Legislature chose to intensify the requirements which now require “immediate” and appropriate corrective action, which is arguably a much  higher standard than “prompt” action than the previous law.

It is unclear how Texas courts will interpret the new amendments, but there are changes that Texas employers are required to institute in light of the amendments. Employers of all sizes, are now required by law to create and disseminate an employee handbook (or a specific policy) detailing what constitutes harassment, a prohibition on harassment, and the steps an employee should take if they experience sexual harassment in the workplace.

Similarly, if such policies are in place, employers should conduct a substantive review of current policies to ensure compliance with the new amendments and current state of the law on harassment and to ensure an adequate reporting system exists. Finally, employers must conduct periodic (at least annually) trainings for employees and supervisors on sexual harassment and reporting. If you are being sexually harassed and your employer is not complying with these new directives under the changed law, you may have a sizeable claim against your employer. Potential sexual harassment claims are not limited to the workplace but include any professional environment and social environment or situation.

McKay Law has significant experience reviewing handbooks and policies and ensuring they are in compliance with state specific new laws, as well as conducting trainings for employees and supervisors. As a result of this experience, McKay Law is uniquely positioned to attack employers who are deficient in their responsibilities under the new law.  We are happy to help you recover the damages you deserve if you are being sexually harassed at work in a professional setting or in a social setting.

Texas Law expands Sexual Harassment Claims | McKay Law

The new Texas laws include a number of significant changes for employers in Texas (related to sexual-harassment claims), including a longer statute of limitations, a broader definition of who qualifies as an “employer,” the potential for individual liability of supervisors, owners, human resources professionals, and other employees, and a heightened standard for employers to respond to internal sexual harassment complaints. These changes do not apply to claims based on other protected characteristics under the Texas Labor Code, such as race, religion, color, age, etc.

Statute of Limitations

Currently, prior to filing a lawsuit relating to an unlawful employment practice under Chapter 21 of the Texas Labor Code, including sexual harassment, an employee must first file a charge of discrimination with the Texas Workforce Commission within 180 days of the alleged unlawful employment practice.  With the enactment of HB 21 (which amends Section 21.201(g) of the Texas Labor Code), Texas employees will now have a much longer period of time to file their complaint alleging sexual harassment. 

Under this new law, for a sexual-harassment complaint based on conduct occurring on or after Sept. 1, employees will be allowed to file their charge with the Texas Workforce Commission within 300 days after the date the alleged sexual harassment occurred.  For claims based on any other protected class under the Texas Labor Code (e.g., race, color, age, etc.), the current statute of limitations of 180 days will continue to apply.

Expanded Employer Definition

Under current Texas law, employees can only bring a claim of harassment or discrimination based on protected characteristics (including sexual harassment) against their employer, if the employer has at least 15 employees.  SB 45 (codified at Section 21.141 of the Texas Labor Code) defines an “employer” as a person who employs one or more employees.  This means that, beginning September 1, 2021, effectively any and all employers in Texas may be held liable for sexual-harassment claims asserted under the Texas Labor Code.

Texas Law expands Sexual Harassment Claims | McKay Law

Risk of Individual Liability

Another key distinction of the new law from current Texas law is that, for purposes of sexual-harassment claims only, the term “employer” also includes any person who “acts directly in the interests of an employer in

relation to an employee.” Accordingly, after Sept. 1. supervisors, managers, human resources professionals, other employees and third parties may be named individually as defendants in an employee’s sexual harassment complaint and held personally liable for damages. This change represents a seismic divergence from current Texas law, which did not previously provide for individual liability for any harassment or discrimination claims under the Texas Labor Code. 

A collateral effect of this new law will be its potential to foreclose an employer’s ability to remove a sexual-harassment lawsuit to federal court, which is often viewed as being a more favorable venue for employers, in comparison to state courts. Currently, out-of-state employers routinely remove sexual harassment claims filed in Texas state court to federal court, based on diversity of citizenship grounds. If a non-diverse supervisor, human resources professional, or other employee (i.e., a Texas resident) is added as a defendant to the lawsuit, the employer will no longer be able to remove the case to federal court based on the diversity of the parties. 

Thus, this new Texas law may result in far fewer summary judgments on sexual harassment claims, as federal courts are more likely to grant summary judgment, compared to state courts, as a general proposition. If this occurs, then another collateral effect of this new law will likely be an increase in the settlement value of these types of claims.

Heightened Standard for Employer Response

The new Texas law also provides that an employer commits an unlawful employment practice if sexual harassment of an employee occurs and the employer or its agents or supervisors: “(1) know or should have known that the conduct constituting sexual harassment was occurring; and (2) fail to take immediate and appropriate corrective action.” This new standard deviates from current Texas law, which provides a potential defense to employers that take “prompt remedial action” in response to an employee complaint. 

However, what constitutes “immediate and appropriate corrective action” is not defined in the new law, so the exact meaning of this phrase will certainly be the subject of litigation, and remain a disputed issue, until it is definitively addressed by the Texas courts.

McKay Law is eager to boldly but confidentially fight and protect anyone who may be the victim of sexual harassment

The sexual harassment attorneys at McKay Law have extensive experience investigating, preparing, and litigating employment sexual harassment claims. We have a proud history of providing compassionate advocacy for victims of workplace harassment, and dedicate ourselves to stopping the harassment and seeking full compensation for our clients.

To find out if you may be eligible for legal recourse through a sexual harassment lawsuit, do not hesitate to Call us today at (903) 999-2653 or submit your case for a free case review with McKay Law.

Texas Law expands Sexual Harassment Claims | McKay Law

Insurance Carriers Are Not Required To Pay for Your Medical Bills Automatically.

Medical Bills | McKay Law

Texas car insurance providers are not required to pay for your medical bills after a car accident. If you’ve been injured in a car accident that was caused by another driver’s negligent vehicle operation, you may wonder how you will be compensated for your injuries.

You’ve got medical bills, prescription drug costs, and future treatments that must be paid. Even if your personal medical insurance covered some of the medical bills, you’re going to be out of pocket a substantial amount of money. You would presume the other driver’s insurance would be obligated to pay those costs, to say nothing of your PIP and/or your UIM/UM insurance. But that’s simply not the case.

Why AREN’T insurance companies required by law to pay my claims?

Due process: The defendant’s insurance carrier agreed to be the other driver’s financial bullet-proof vest in the event that he hurt someone and was sued. They did not agree to roll over and pay anyone who makes any allegation against their insured. Even if we know for sure someone has committed a crime, we don’t immediately put them in prison. The laws of this country require the accuser to prove their case against the accused. Until this has happened, the matter is unresolved.

Once the accused admits he is guilty or if he is found guilty by a jury, then they are finally punished. In similar fashion, no matter how certain you are the other driver caused your injuries, they are not required to actually pay for their mistakes until they voluntarily agree to do so or are found negligent by a jury. This concept of “you have to prove your allegations against the person who did you harm” is called “due process.” The way insurance carriers see it, why would they pay you if there is a chance that their insured driver could be found not to be negligent?

Sometimes insurance carriers will read the writing on the wall and assume that their own client’s liability is a foregone conclusion, but why would they do so? Such a decision is against their financial interests.

  • Claimants aren’t always in the right: Just because you were in an accident doesn’t mean it was the other driver’s fault. Liability insurance is to help the victim, not the cause, of accidents. Occasionally, “victims” aren’t victims at all but are seeking to defraud the system.
  • Reasonable people can disagree over your claim’s value: Even assuming the other driver is at fault, you’re only permitted to pursue losses directly attributable to the accident itself. Which injuries are “preexisting” and which are new can be open to debate in some cases.
  • The insurance companies’ legislative lobby: Every year the Texas Legislature is in session insurance lobbyists are crawling all over the Capitol. They want favorable provisions inserted into medical bills that benefit them, as well as avoidance language to postpone any penalties for failure to pay claims.

Insurance companies use every tool available to keep you from paying you what you deserve. An experienced car & truck accident attorney knows how to combat these tactics and put you in the best possible position to recover your losses.

McKay Law can force the insurance carrier to pay you what you deserve

As the injured party, McKay Law has to prove the defendant’s liability first. In other words, the other driver’s insurance company is only required to pay after you prove to a jury that their client was responsible for causing your accident. Second, the burden is on us as your attorney to prove the full extent of exactly how you’re injured. Briefly:

  1. Liability: Even if the police faulted the other driver, that’s not the end of the story. Police aren’t judges and juries, and they’re sometimes wrong. Your lawyer needs to find the witnesses and evidence necessary for your case to win. Only when he’s done that will the defendant insurance company entertain the idea of cutting a check for your injuries.
  2. Damages: But as in any tort case, it’s not enough to show that the other driver did something wrong—you have to show, with medical certainty, that you’re injured and those injuries came from the accident.

A further wrinkle: sometimes, an insurance company will accept liability for an accident victim’s property damages but will deny liability for their medical injuries. Although many reasons could be claimed for this practice, it usually comes down to economics. That is, property damages are usually much more definite and are often less costly than medical bills.

Here’s why you should contact McKay Law

Mckay Law is eager to boldly fight and protect anyone who may be the victim of a car or truck accident!

Ensuring that you take the steps necessary to make the defendant’s car insurance pay for your medical bills is extremely important to your long-term health and quality of life. To best ensure that you can obtain compensation for your injuries, you should consult an experienced car accident lawyer like McKay Law. Our attorneys invite you to give us a call any time, day or night, for a free consultation regarding how they may be able to help you recover compensation for your injuries at (903) 999-2653 –  call us today or submit a free case review with McKay Law Sulphur Springs personal injury lawyer.

Fast settlement? Settlement Negotiations May Not Be Used Against You.

Settlement Negotiations | McKay Law

McKay Law suggests you Think Twice Before Assuming Your “Settlement Negotiations” May Not Be Used Against You.

Most people who are involved in resolving disputes or negotiating deals for their businesses have seen documents labeled “CONFIDENTIAL SETTLEMENT OFFER” or something similar.  It’s commonly understood that this label is affixed to documents because then they may not be used against the sending party in any ongoing or future litigation.  As a general matter, this common understanding is correct—settlement communications are often inadmissible in court proceedings. 

However, it’s far too simplistic to suggest that anything you consider to be a “settlement negotiation” is going to be kept out of court.  It’s important to understand the limits of the protections afforded to “settlement negotiations.”  Otherwise, you may make a statement in what it believes to be a confidential “settlement negotiation” only to have that statement used against it in court.  This article explores some of the common situations in which you may fall into a trap if it doesn’t understand the rules regarding protections for settlement negotiations or communications.

The Basis for Protection of Settlement Communications

The protections relating to the admissibility of settlement communications are found in the Federal and Texas Rules of Evidence.  In the Federal Rules of Evidence (and most state rules, including Texas) Rule 408 (sometimes referred to in this article as the “Rule”) is the rule that addresses the admissibility of settlement negotiations.  The Rule provides:

(a) Prohibited Uses.  Evidence of the following is not admissible—on behalf of any party—either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

(1) furnishing, promising, or offering—or accepting, promising to accept, or offering to accept—a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or a statement made during compromise negotiations about the claim—except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.

(b) Exceptions.  The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

A quick reading of Rule 408 makes pretty clear that it doesn’t provide the all-encompassing protection for settlement negotiations that many think.  In particular, there are three potential traps for you if it isn’t aware of Rule 408’s limitation: 

  • First, the Rule only relates to the admissibility of settlement negotiations, it doesn’t relate to the discovery of settlement negotiations. 
  • Second, the Rule only protects “compromise negotiations.” 
  • Third, the Rule contains express exceptions. 

Each one of these potential traps should be considered before assuming that a communication relating to a negotiation will be protected.

Settlement Communications May Not Be Admissible, But They Can Be Discoverable

The first potential trap relating to Rule 408 protection is evident from its plain language.  Specifically, Rule 408 says only that settlement communications are “not admissible.”  However, just because a settlement communication may be inadmissible does not mean that the opposing party can’t discover it.  This creates a potential issue because you may tend to be more open and frank in settlement communications because of the belief that they are protected communications.  But, you should be cautious because, even if not admissible, your settlement communications might be discoverable.  A simple hypothetical demonstrates this point:

Rule 408 may not protect against disclosure of the communication in which you admitted something about your accident.  Although this communication wouldn’t necessarily be admissible in the trial, it might give the defendant valuable insight— And this knowledge might give the defendant a leg up in the litigation.

So, there’s a lesson to learn here.  Although settlement communications themselves may not be admissible, an opposing party may be able to discover them.  Therefore, you should not let your guard down when engaged in dispute resolution and should be cautious about its written communications.  Otherwise, a future opponent may be able to score valuable intelligence on what you consider its strengths and, more importantly, its weaknesses.    

“Compromise Negotiations”

The second potential trap relating to Rule 408’s protection of settlement communications relates to its vague “compromise negotiations” language.  Courts interpreting Rule 408 have found that “compromise negotiations” don’t include simple business negotiations.  In other words, there must be some existing legal dispute that’s being resolved, not just standard back-and-forth negotiations over a matter of routine business.  Under this standard, the following are examples of communications that don’t qualify for protection as “compromise negotiations”:

  • General discussions between parties about an accident or a contract, the meaning of its terms, or the parties’ performance. 
  • “Settlement offers” regarding “lump sum” payments versus “monthly payments.”
  • Offer of a “breakup fee” for a contract which is more appropriately a proposal made in the midst of a business communication than a dispute under Rule 408.

What these examples make clear is that even if parties are negotiating over conflicting terms, Rule 408 won’t apply unless there’s a true legal dispute between the parties.  For example, if the parties are disputing whether payment is actually owed under a contract, there may be Rule 408 protections for those communications.  However, if the parties agree that payment is due under the contract and are simply negotiating how that payment will be made, Rule 408 may not protect the communications.

The takeaway here is that you shouldn’t count on all negotiations being protected from admissibility as “compromise negotiations.”  Compromise negotiations (as referred to in Rule 408) and business negotiations are not synonymous—even when the business negotiations involve the exchange of conflicting terms.

It’s also appropriate to mention here the common “CONFIDENTIAL SETTLEMENT COMMUNICATION” label mentioned at the outset of this article.  You’s use of this label potentially could help in convincing a court that the so-labeled communications are actually “compromise negotiations” within the meaning of Rule 408 but this labeling likely will not be dispositive, and the court may ignore it if it’s clear that the communications at issue don’t involve a true legal dispute.  However, you can use the fact that it labeled the communication as a “CONFIDENTIAL SETTLEMENT COMMUNICATION” to indicate that the negotiations at issue related to an actual dispute, and not just conflicting terms.

Exceptions to the Rule

Finally, although Rule 408 expressly identifies exceptions to its protections, these present a third potential trap that is often glossed over.  As set forth above, Rule 408 provides that settlement communications are inadmissible to “prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement….”  But, settlement communications may be admissible for “another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or providing an effort to obstruct a criminal investigation or prosecution.”

One particularly powerful purpose for admitting settlement communications is to show a party’s intent.  As described above, parties are typically their most candid during settlement communications and are likely to make statements indicative of their true intent.  For example, in a recent case, the plaintiff’s representative acknowledged during settlement negotiations that the plaintiff’s goal was to shut down the defendant’s business.  Subsequently, the defendant filed an abuse of process claim essentially alleging that the plaintiff had brought its lawsuit for the improper purpose of shutting down the defendant’s business.  The court found that the statements by the plaintiff’s representative during settlement negotiations were admissible as to the plaintiff’s intent.

Once again, the lesson here is that you should keep up its guard—even if it believes it’s engaged in settlement negotiations.  And the exceptions to Rule 408 make clear that even statements of bluster and/or perceived strength made during settlement communications could come back to bite you under certain circumstances.

Conclusion

The Rules of Evidence protect settlement communications from admissibility in many cases.  They do this to promote frank and candid settlement discussions.  However, they don’t provide as much protection as many commonly think.  Therefore, it’s important to know the parameters of the rules governing the protection of settlement communications and to consider them when engaging in settlement negotiations.

Mckay Law is eager to boldly fight and protect anyone who may be the victim of Personal Injury

Contact McKay Law if you have any questions about your injury or if you think you may need legal advice. We provide free case evaluations. If you need legal help, call us today or submit your case for a free case review with McKay Law’s personal injury lawyer.

Texas Oilfield Accidents: The Truth

Oil Rig Accident & Explosion Lawyers | McKay Law
  • Texas is the top crude oil and natural gas-producing state in the nation. In 2020, Texas accounted for 43% of the nation’s crude oil production and 26% of its marketed natural gas production.
  • The 31 petroleum refineries in Texas can process almost 5.9 million barrels of crude oil per calendar day, which was 31% of the nation’s refining capacity as of January 2020.
  • Texas leads the nation in wind-powered generation and produced about 28% of all U.S. wind-powered electricity in 2020. Wind power surpassed the state’s nuclear generation for the first time in 2014 and produced more than twice as much electricity as the state’s two nuclear power plants combined in 2020.
  • Texas produces more electricity than any other state, generating almost twice as much as Florida, the second-highest electricity-producing state.
  • Texas is the largest energy-producing and energy-consuming state in the nation. The industrial sector, including its refineries and petrochemical plants, accounts for half of the energy consumed in the state.

BIG PRODUCTION LEAD TO CATASTROPHIC INJURIES OR DEATH

Drilling oil is dangerous.  Fatal and injurious oilfield accidents in Texas are all too common.  In fact, the oil and gas industry has some of the highest rates of work-related accidents.  Even though OSHA is the authority that penalizes company violations leading to injuries and fatalities, it is arguably not in the oil and gas workers’ corner.  OSHA investigates oilfield accidents and may find company violations and impose fines and penalties.  Usually, the big oil and gas companies contest OSHA’s findings, and many times for the sake of hazard abatement, OSHA will reduce fines and sometimes dismiss penalties altogether.  BIG Oil and BIG government work together to regulate worker safety and document accidents in the oil and gas industry.  What is left unseen are the negotiations between corporate and the government to resolve settlement instead of restoring victims.

The more pressure there is to supply fuels for exports, the greater the temptation to skip steps, rush production and circumvent safety measures.  The 2016 film, Deepwater Horizon, is a dramatization of such a horror when offshore drilling rig was pressured to timely fill orders and cut costs that lead to an explosive, devastating disaster resulting in deaths and the worst oil spill in American history.

TEXAS TRIBUNE: “From 2008 through 2017, 1,566 workers perished trying to extract oil and gas in America.  About as many U.S. troops died fighting in Afghanistan during that period.”

You need someone in your corner looking out for your and pathing the way for safer standers for workers.  At McKay Law we fight together to improve the lives of our clients’ and to make a difference for the rest of the industry. 

THE MOST COMMON OILFIELD INJURIES IN TEXAS

Workers in the oil & gas industry are subjected to extremely dangerous oil field worksite conditions, where cutting corners on safety, oversight, and maintenance can pose real risks of serious injury or death.  Oil field accident can cause devastating and life-threatening injuries.  McKay Law lawyers work hard to make sure that injured workers and their families are properly compensated for their current and future needs.   

  1. HEAD AND BRAIN INJURIES:  concussions, traumatic brain injuries, skull and facial fractures, and facial lacerations.
  2. NECK AND BACK INJURIES: Spinal cord injuries, severed spinal cords, pinched nerves, herniated, bulging or ruptured discs, broken vertebrae, whiplash, and paralysis.
  3. BONE INJURIES: Broken bones, hairline fractures, compound fractures, and dislocated bones or joints.
  4. LIMB AND EXTREMITY INJURIES: partial amputation; total amputation; crushed limbs; and temporary or permanent damage to the functionality of arms, legs, feet, hands, fingers, or toes.
  5. SOFT TISSUE INJURIES: Tearing of muscles, tendons, and ligaments, sprains and strains.
  6. BURNS: first degree burns, second-degree burns (partial-thickness burns), third-degree burns (full-thickness burns), blistering and scarring.
  7. SKIN INJURIES: lacerations, chemical burns, frostbite, cuts, punctures, and bruises.

Workers who suffer any of these injuries may be entitled to compensation by their employer or other responsible parties.  An oil field accident lawyer at McKay Law can help you determine who is responsible for your injuries and how much compensation you deserve. We rely on aggressive legal strategies in oil field accidents which is crucial in making sure that are clients’ needs – today and in the future – are covered. 

To learn more about our experience in oil field accident/pipeline explosion related matters, we invite you to contact McKay Law:

Contact our Oil Rig Accident and Explosion Lawyers for a Free Consult at 903-999-BOLD or (903) 999-2653 and [email protected]

Statute of Limitations in Texas

Statute of Limitations | Article | McKay Law

When a person is involved in a motor vehicle collision, one common question that comes to mind is how long an individual has to file a lawsuit–or the Statute of Limitations. On the surface, one can look up Texas Civil Practice & Remedies Code section 16.003 to find out that Texas has a 2-year limit to file a lawsuit regarding simple negligence. However, like most areas of law, it depends.

If the injury involves a written contract, such as underinsured motorist claims, a 4-year statute of limitations could apply. On the other hand, in an incident involving a municipality, or governmental entity, the injured individual is required to submit a Notice of Claims to the entity that caused the injury within 6 months of the incident (Texas Tort Claims Act Section 101.101.)

Of course, there are exceptions to this rule, such as the general rule of discovery.

When in doubt, it is always best to contact an attorney. With the Gold Standard at McKay Law, our attorneys have the expertise to properly navigate the Statute of Limitations. For a consultation, call (903) 999-2653.

Restraining Orders for Cellphone Records

Restraining Orders For Cellphone Records | Article | McKay Law

When a person first thinks of a restraining order, one would normally think of the document which prevents a specific criminal from entering a specified premise. However, there are many other uses of a restraining order.

Texas Rules of Civil Procedure Section 680 give guidance to anyone attempting to use this provision. It is frequently used in family law cases in order to freeze bank accounts to prevent the opposing party from wasting resources.

In a day in age where people are constantly on their cell phone, chances are high that collisions occur because of texting while driving.

These cell phones automatically and routinely create and delete information as the cell phone is used. Even with a spoliation and preservation of evidence letter, valuable information is lost quickly. In addition, some cell phone providers will delete cell phone usage information on a yearly basis. In order to get the most accurate information, a restraining order can allow someone to retrieve this valuable information quickly, as to not have this information lost forever.