Plaintiffs Ask Jury for $1.3 Million; Recover only $10,000

Attorneys Robert Fuentes and Stefan Casso of the The Fuentes Firm, P.C., along with its south Texas counsel David T. Garcia, successfully defended a cattle-hauling company in a personal injury lawsuit brought in Brooks County, Texas. The Thomas J. Henry Law Firm represented the Husband and wife Plaintiffs. This is the second favorable jury verdict The Fuentes Firm has received in the defense of trucking companies in personal injury cases in the last six months.

Plaintiffs sued a Brooks County-based trucking company for over $1 Million after a rear-end accident that occurred on Interstate 10 in San Antonio, Texas. (more…)

Plaintiff recovers $0 in trucking-accident jury trial

The Fuentes Firm successfully defended a Houston-based trucking company in a personal injury lawsuit in Houston, Tx. The Plaintiff, a single mother with five children, was involved in an accident with one of the trucking company’s tractors. The facts of the accident were heavily disputed.

The Plaintiff  was driving a non-commercial motor vehicle near downtown Houston when the collision occurred. It was lightly raining at or near the time of the accident. The Plaintiff’s vehicle was totaled, and the fire department had to use the jaws of life to remove the Plaintiff from the vehicle.

The Plaintiff claimed, and the Plaintiff’s expert testified, that the tractor-trailer rear-ended Plaintiff’s vehicle and sent Plaintiff’s vehicle spinning into the concrete-enforced barrier on the side of the highway.

Robert Fuentes presented evidence and argued that the Plaintiff’s nearly-bald tires caused the Plaintiff to lose control and turn in front of the truck driver. Mr. Fuentes discredited Plaintiff’s expert reconstructionist and rebutted the expert’s opinion of how the accident occurred.

After a 3-day trial, the jury failed to find the trucking company’s driver negligent, and the Plaintiff walked away with $0.

Directed verdict for trucking company in wage claim suit

The Fuentes Firm successfully defended a trucking company in a wage claim lawsuit in Houston, Tx. The Plaintiff, trucking company’s former employee, sought damages from the trucking company for non-payment of wages and misappropriation of name and likeness. Robert Fuentes obtained a directed verdict in favor of the trucking company at trial.

The Plaintiff claimed the trucking company breached the compensation agreement the Plaintiff entered into with the trucking company.

The judge agreed with Mr. Fuentes’s arguments and granted a directed verdict in favor of the trucking company.

Defense verdict for trucking company in right-hand squeeze case

The Fuentes Firm successfully defended an out-of-state trucking company in a personal injury lawsuit in Laredo, Tx. The Plaintiffs, a husband and wife, were involved in an accident with one of trucking company’s tractors and sought $750,000 at trial. The Plaintiffs’ attorney brought in 5 expert witnesses and personally spent over $100,000 on the case. However, the jury was persuaded by Robert Fuentes’s trial arguments and found the trucking company and their driver 0% liable.

The Plaintiffs were driving a non-commercial motor vehicle near the trucking company’s Laredo terminal when the collision occurred. The Plaintiffs were driving on the right side of a two-way street without lane markings. The trucking company’s tractor was traveling in front of Plaintiffs, going the same direction. When the trucking company’s driver attempted a right turn into the trucking company’s terminal, the tractors’ passenger side struck the Plaintiffs’ left-front fender.

The Plaintiffs claimed the road was large enough for 3-4 lanes and the tractor was traveling in an unmarked center-turn lane. The Plaintiffs claimed the truck driver made an unsafe right turn, either from the wrong side of the road or from the center turn lane, by swinging too far to the left before turning to the right. The Plaintiffs also sued the trucking company for negligent training and negligent supervision, based on driver’s hours of service violations, and sought exemplary damages for gross negligence.

Robert Fuentes argued that the hours of service violations did not cause the accident and the truck driver was not fatigued because he obtained adequate sleep. Mr. Fuentes also convinced the jury the Plaintiffs caused the accident by recklessly attempting to pass the tractor on the right side.

After a 6-day trial, the jury found the Plaintiff-driver was 100% responsible for the collision. The Plaintiffs’ attorney hired 5 expert witnesses to support the Plaintiffs’ hours of service violations, fatigue, improper right-hand turn, and damages claims. The Fuentes Firm did not call a single expert to testify at trial.

Minimizing Freight Broker Liability for Loss or Damage to Cargo

Minimizing Freight Broker Liability for Loss or Damage to Cargo

By Brian Schrumpf of the Fuentes Firm published on January 28, 2015.

Brokers frequently face claims from their customers for loss or damage to cargo. While the motor carrier that transports the cargo may actually be at fault, customers often look to the broker for loss or damage to cargo because the customers hire the broker. As a practical matter, for business reasons, and to maintain positive client relationships, the broker often wants to ensure that claims are resolved timely, as opposed to denying claims and possibly losing customers.

There are several methods brokers can utilize to prevent and limit their liability from such claims, which include:

  • Verify the motor carriers’ authority and perform due diligence in selecting motor carriers;
  • Verify the motor carriers have adequate insurance to cover the cargo;
  • Have a strong Broker-Carrier Agreement with motor carriers, especially with regard to liability, indemnification, and insurance obligations;
  • Confirm the value of the cargo with the shipper to ensure that high-value or high-security loads are adequately insured; and
  • Confirm instructions regarding any special needs such as team drivers, tarping, etc.

The Protections of Pre-injury Release Agreements

The Protections of Pre-injury Release Agreements

By Brian Schrumpf from The Fuentes Firm published on November 20, 2014.

Pre-injury release agreements are a powerful tool for limiting exposure from workplace injuries of independent contractors. A pre-injury release agreement is a contract in which an individual gives up his/her right to bring a claim against another party, regardless of the other party’s negligence. If the injured person executes a pre-injury release agreement and brings a claim for negligence against the other party, the other party can obtain summary judgment for the injured person’s negligence claim.

de Tamez v. Southwestern Motor Transport, Inc. shows the powerful effect of a pre-injury release agreement. In de Tamez, one independent contractor driver died and another was seriously injured when the tractor they were driving as team drivers crashed into an overpass. Southwester Motor Transport, Inc. (“SMT”), the motor carrier, required the drivers sign a pre-injury release agreement before driving for SMT. The pre-injury release agreement released SMT from any liability due to negligent acts and/or omissions on SMT’s part. The representatives of the deceased driver’s estate and the injured driver brought suit against SMT for negligence. The San Antonio Court of Appeals found the pre-injury release agreement was enforceable and upheld summary judgment in favor of SMT.

Pre-injury release agreements are also enforceable as a condition of entering upon another’s property. In Smith v. Golden Triangle Raceway, the Beaumont Court of Appeals enforced a pre-injury release agreement where the injured person was granted access to the infield of a race track in exchange for a release of claims. The court upheld summary judgment for the injured person’s negligence claim.

Texas enforces pre-injury release agreements if certain requirements are met, including:

• Fair notice;

• A meeting of the minds; and

• The agreement is supported by valid consideration.

Fair notice and valid consideration require sensitive contract language, so pre-injury release agreements must be carefully drafted. Fair notice requires (1) the party seeking to enforce a release provision comply with the express negligence doctrine and (2) the release provision be conspicuous. Valid consideration requires the independent contractor give up some benefit or some detriment is imposed on the party being released.

Two caveats must be noted when using pre-injury release agreements:

• Pre-injury release agreements are enforceable with independent contractors, not employees; and

• Pre-injury release agreements are enforceable for acts of negligence, but Texas courts have found pre-injury release of gross negligence claims void against public policy.

Certificate Holder, Additional Insured, Loss Payee – What they are and who needs them

Certificate Holder, Additional Insured, Loss Payee – What they are and who needs them

By Brian Schrumpf

Shippers, brokers, and carriers frequently request Certificate Holder, Additional Insured, and/or Loss Payee status from downstream service providers. Each status – Certificate Holder, Additional Insured, and Loss Payee – has a specific meaning and each confers specific rights.

Shippers, brokers, and carriers should understand the different benefits or each status and ensure their agreements require service providers’ insurance policies grant them the appropriate status.

Certificate Holder:

What is a Certificate Holder?

A Certificate Holder is an entity that receives a Certificate of Insurance from an insurer to evidence the type and amount of coverage afforded to the insured. Certificate Holders are typically provided notification of changes in coverage or cancellation of coverage. Certificate holders do not receive coverage or defense under the insured’s policy.

Who needs to be a Certificate Holder?

Shippers, brokers, and carriers should always request Certificate Holder status from downstream service providers. Shippers should request Certificate Holder status from brokers and carriers, and brokers should request Certificate Holder status from carriers. Carriers should request Certificate Holder status from independent contractor drivers that obtain their own insurance.

Additional Insured:

What is an Additional Insured?

An Additional Insured is an entity that is added to an insured’s policy and receives the benefits of coverage and defense afforded under the insured’s policy.

Because an Additional Insured receives coverage and defense, insurers may raise the insured’s premium for the additional coverage. If you are the insured, you may not want to add another entity as Additional Insured because your premium may increase. However, if you value your relationship with the entity or have agreed to defend the entity under an indemnification clause, you want to be sure the entity is an Additional Insured on the policy.

Who needs to be an Additional Insured?

Shippers, brokers, and carriers should always request Additional Insured status from downstream service providers, except for one situation – shippers should not request additional insured status under brokers’ and carriers’ cargo policies.

Shippers should request to be added as Loss Payee under carriers’ and brokers’ cargo policies. A broker’s or carrier’s cargo insurance provides coverage and defense for damage to a third-party’s property. The shipper is the third party that owns the property, so they do not want the same coverage afforded to a broker or carrier under a cargo policy. There could be a conflict in coverage if the shipper is both the entity afforded coverage for damage to a third party’s property and the third property that owns the property. Instead of Additional Insured status, shippers should request Loss Payee status on brokers and carriers’ cargo policies.

Loss Payee:

What is a Loss Payee?

A Loss Payee is entitled to receive the insurance proceeds from covered property.

Who needs to be a Loss Payee?

There are two relationships where Loss Payee status is important. As discussed above, a shipper should request Loss Payee status from brokers and carriers. In addition, carriers and entities that lease tractors or trailers to drivers should request Loss Payee status on the drivers’ physical damage insurance. Often, it is safer for a carrier to obtain physical damage insurance and charge it back to the driver, to ensure there is adequate coverage. In this case, the carrier is the insured, so Loss Payee status is not necessary. However, if the driver obtains physical damage insurance, a carrier or other entity leasing a tractor or trailer to the driver should be listed as Loss Payee on the driver’s physical damage policy. This applies to lease and lease-to-own arrangements.

Verdict in Favor of Publicly-Traded Trucking Company in Construction Zone Accident

Represented publicly-traded trucking company at trial obtaining unanimous verdict in favor of trucking company and truck driver that crashed into construction crew in a construction zone.

Although the DPS state trooper found the truck driver solely at fault for the accident, Mr. Fuentes successfully showed the jury that the officer did not have complete information at the time of police investigation. It was ultimately shown that the construction crew’s last second change of direction was the primary cause of the accident, absolving the truck driver. Mr. Fuentes was the lead counsel at trial and presented the case from voir dire to closing argument.

Trucking Company Wins $500,000 Judgment

Robert Fuentes represented a trucking company in a suit against the trucking company’s former Operations Manager in March 2006. After a 5-day jury trial, the jury was persuaded by Mr. Fuentes and awarded the trucking company a $500,000 judgment.

The trucking company alleged the former employee misappropriated the trucking company’s trade secrets and breached his fiduciary duty to the trucking company. The former employee set up a competing corporation and contacted the trucking company’s customers and employees, while acting as Operations Manager at the trucking company. The former employee claimed the information he used to set up competing business was public knowledge and the non-disclosure agreement and non-compete agreement he executed with the trucking company was unenforceable.

Texas Supreme Court Holds Evidence of Seat-Belt Non-Use Admissible to Show Plaintiff’s Comparative Fault

Texas Supreme Court Holds Evidence of Seat-Belt Non-Use Admissible to Show Plaintiff’s Comparative Fault

By David Helmey from The Fuentes Firm published on March 13, 2015.

“We hold relevant evidence of use or nonuse of seat belts, and relevant evidence of a plaintiff’s pre-occurrence, injury-causing conduct generally, is admissible for the purpose of apportioning responsibility under our proportionate-responsibility statute, provided that the plaintiff’s conduct caused or was a cause of his damages.”

Nabors Well Servs. v. Romero, 2015 Tex. LEXIS 142, 34 (Tex. February 13, 2015)

In its 1974 opinion in Carnation v. Wong, the Texas Supreme Court held that evidence of failure to use a seat-belt was not admissible to reduce the damages of plaintiffs whose negligence did not contribute to the underlying accident. In 1985, the Texas Legislature enacted a provision stating that “[u]se or nonuse of a safety belt is not admissible in a civil trial.” This law, being much broader than the Court’s holding, became the final word on the admissibility of evidence of seat-belt use in Texas.

This remained the rule until 2003 when that provision was repealed. Since 2003, the Texas intermediate courts of appeals have struggled with the effect of this repeal in light of the Supreme Court’s prior ruling. Some held that Carnation still prohibited evidence of seat-belt use to show a plaintiff’s negligence; others simply noted that Texas law on the issue was “unsettled.” None were able to conclude that the repeal was conclusive of the legislature’s intent to permit evidence of seat-belt use. Without a definitive statement from the legislature or the Supreme Court, the lower courts were unable to agree on whether this evidence could be admissible.

On February 13, 2015, the Texas Supreme Court settled the issue. Based on changes in Texas’ proportionate responsibility regime and shifting attitudes towards seat-belt use between 1985 and 2003, the Court held that a blanket prohibition on the admission of seat-belt is inconsistent with Texas law. With this ruling, Texas law is effectively changed to permit evidence that a plaintiff was not wearing their seat-belt to show their proportionate responsibility for their own injuries, and to potentially reduce any judgment accordingly.