Saying “No” is one of the worst jobs of a trial lawyer. We are in business to help injury victims.  People who call expect us to do something! When the law and facts are unfavorable, people do not take the news well.  And who can blame them?  They keep hearing people get rich from lawsuits.  It is untrue.  At best, people are compensated and not enriched in lawsuits.  “Frivolous lawsuits” and the “lawsuit lottery” are illusions.  You are much more likely to lose a valid lawsuit than win a frivolous one.  But the sales job by the “tort reform” lobby has been relentless, so people have expectations, particularly when their injuries are not their fault.

Your legal rights and remedies have been slashed and burned by an aggressive, anti-consumer, pro-insurance Texas Legislature and Supreme Court.  As a result, we lawyers say “No” on many cases we accepted in the past.

Premises liability cases – where someone slips or trips and falls – are an example.  For years, lawyers could win these cases if we showed an operator of a business should have known there was a hazard.  Over the past twenty years, the Supreme Court of Texas has made it difficult to win a case without showing employees of the business actually knew there was a hazard.

Most people who slip and fall in stores are treated as pests by store management and even worse by claims adjusters.  They are strung along and asked for proof of their injuries only to be told (often after the two year statute of limitations passes) the store was not at fault and they will receive no help.

Retail stores refuse to pay injured customers’ medical expenses as they arise.  People with health insurance have a means of seeking care.  Those without coverage are left in limbo.  They cannot afford treatment, and most lawyers will not help them.  The lines at public hospitals like Ben Taub and LBJ are long and frustrating, but they are frequently the only choice for people with no coverage.

So, what should you do if you fall at a store or other public business?  Here are steps to follow:

1.  SAY SOMETHING! Let people around you know you have fallen.  Summon help from store personnel and bystanders.  Try to find witnesses to help you confirm the hazard had been there a long time and was being ignored by store personnel, and get their contact information (name, address, phone, email).

2.  TAKE PICTURES. Use a camera or smart phone to take as many photographs of the area as possible – including the source of the spill or other hazard – before store employees change the scene.

3.  SEEK MEDICAL CARE. Do not wait for the store’s claims staff to help you.  Go to a hospital or the doctor immediately, even if you have to go to a public hospital or emergency room.  Continue to seek care as needed.

4.  WRITE THE STORE.  Send a certified letter with a return receipt (green card).  State the date, time and location of your fall and ask the store to “preserve any and all video images that show the area of the fall and 200 feet around that area for at least two hours prior to the incident.”  Keep a copy of your letter.  If you have a fax machine that will print out a confirmation sheet, you can fax the letter instead of sending it by certified mail.

5.  CALL A LAWYER.  Do not wait to be told “NO” by the store’s claims adjuster.  Go over the facts of the incident with a lawyer as soon as possible.

Even if you follow these steps, you may not have a case.  But you may at least have a fighting chance!

The minimum limits of automobile bodily injury liability insurance are $25,000 per person/$50,000 per accident.  Those limits go up to $30,000/$60,000 on January 1, 2011.  However, people with severe injuries often find these minimum limits do not cover all their medical bills, lost income, pain and suffering and other damages.   What can you do?

First, to protect yourself, buy uninsured/underinsured motorist (UIM) coverage. UIM coverage pays your damages when the other driver has no insurance or too small a policy.  Everyone should have at least $50,000 in UIM coverage, and more if you can afford it (your UIM coverage cannot exceed your liability coverage, so that is a consideration).

However, there is a legal doctrine that can actually make an insurer liable for more than the limits of coverage.  The “Stowers Doctrine” provides that insurance companies that negligently reject an unconditional offer of settlement within the limits of coverage may be held liable for the entire judgment.

If that sentence was complicated and hard to follow, don’t feel alone – many lawyers do not know the ins and outs of this doctrine! However, for those of us who work in personal injury law, it is a tool we use in selected cases.  In order to set up a “Stowers claim,” the plaintiff (injured person) must offer to settle all claims against the insured for the amount of the coverage.

This can be a calculated gamble, particularly if there is any chance of collecting a judgment in excess of the policy limits from the insured.  There may be other stakeholders in your claim, such as health insurers who claim a right of reimbursement or “subrogation,” who will have to be paid out of the settlement if the insurance company accepts the offer.   You should also make sure you have written permission from your UIM carrier.  Otherwise, you will be violating a provision of your policy and may not be able to recover UIM benefits.

This doctrine is not actually implemented unless the offer is rejected, and you go to court and obtain a judgment in excess of the policy limits.  If the defendant cannot pay the amount of the judgment in excess of his policy limits, you have the right to file a second lawsuit against the insurance company.  If you prove the insurer was negligent in failing to settle, you can recover the balance of the judgment from the insurer, even if that amount exceeds the policy limits!

You cannot turn a $25,000 case into $100,000.  However, if you have a $100,000 case, and the responsible party has only $25,000 in coverage, there is a strategy to try to collect the entire amount.