VERDICT SEARCH REPORTS A $1,400,000 SETTLEMENT BY THE TYLER, TEXAS FIRM OF DERRYBERRY ZIPS WADE LAWHORN, PLLC IN AN 18 WHEELER CRASH

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Pictured from left to right: Tab E. Lawhorn, Daryl L. Derryberry, Guy I. Wade, III and Craig D. Zips “Keeping Your Community SAFE One Case At A Time”

On Feb. 17, 2016, plaintiff Wanda Huddleston, 79 and retired, was northbound in a Chevrolet Silverado pickup truck on U.S. Highway 69 near Lindale, Texas. Handrijono Oetomo (“Oetomo”), an employee of DAT Truck Lines Inc. (DAT”), was southbound in an 18-wheeler owned or leased by HNL Truck Lines Inc (“HNL”). It was early morning and dark, and traffic was heavy. Oetomo attempted a U-turn in an open intersection, and Huddleston struck the 18-wheeler. She sustained multiple injuries and later had multiple strokes, which caused her to become mentally incapacitated. The investigating officer gave Oetomo a ticket for failing to yield the right of way.

Huddleston’s son, on her behalf, sued Oetomo, DAT and HNL for Oetomo’s actions in negligently making an unsafe U-turn, failing to yield the right of way and failing to keep a proper lookout. He also sued DAT for violating numerous policies and procedures and Federal Motor Carrier Safety Administration (FMCSA) regulations by not giving Oetomo any driver training, not disciplining him for driver log violations, not suspending him after he was given a citation, and not making a determination of whether the accident was preventable. The plaintiff sued HNL on theories of vicarious liability, alleging that Oetomo was a statutory employee of HNL.

Oetomo took no responsibility for the wreck and blamed Huddleston, in part, because women have slower reflexes.

Plaintiff’s counsel argued that Oetomo was lost and unfamiliar with the area and that he was in a rush, and that he falsified his logs. The truck’s data recorder said the truck had been operating for more than 13 hours, but Oetomo’s handwritten logs said he had been driving for only 7.25 hours.

Plaintiff’s counsel further argued that, under FMCSA regulations, because Oetomo did not understand English well enough, he should not have been driving the vehicle at all.

The defense argued that Huddleston was contributorily negligent for driving too fast, not keeping a proper lookout, not controlling her speed, and not braking or turning in time to avoid the collision. The defense accident reconstruction expert opined that Huddleston should have been able to see the truck and stop before the impact. An eyewitness who was behind Huddleston was able to stop, the defense noted.

HNL further argued that the truck was not a listed vehicle under its insurance policy and that it therefore had no insurance coverage. (Plaintiff’s counsel argued that, because the policy had a particular endorsement, known as an MCS-90 endorsement, the carrier would have to pay any eventual judgment against  Oetomo and HNL.)

Huddleston sustained a leg fracture and a subdural hematoma. She claimed that the accident caused two to three debilitating strokes, as well.

She underwent open reduction and internal fixation (“ORIF”) of the fracture, with placement of pins and screws. For the subdural hematoma, she underwent a craniotomy.

As a result of the strokes, she required 24-hour care and had to move into a nursing home. Plaintiffs’ neurology expert opined that the strokes were related to the accident.

Huddleston sought past medical bills of about $315,000, as well as $918,000 for the present value of her life-care plan. She also claimed past and future physical pain, mental anguish, physical impairment and disfigurement.

The defense neurology expert opined that strokes resulted from pre-existing conditions, not from the accident.

 The case settled for a total of $1,400,000. DAT and Oetemo settled on Sept. 16, 2016, for their policy limit of $1 million, paid by their carrier. HNL settled at mediation on March 6, 2017, for $400,000, paid by HNL’s carrier. HNL’s policy limit under the MCS-90 endorsement was $750,000.

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DERRYBERRY ZIPS WADE LAWHORN, PLLC

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VERDICT SEARCH REPORTS A $1,100,000.00 SETTLEMENT BY THE TYLER, TEXAS FIRM OF DERRYBERRY ZIPS WADE LAWHORN, PLLC IN AN 18 WHEELER CASE

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Pictured from left to right: Tab E. Lawhorn, Daryl L. Derryberry, Guy I. Wade, III and Craig D. Zips “Keeping Your Community SAFE One Case At A Time”

On Jan. 13, 2016, plaintiff Demon Savage, early 40s, was driving on State Highway 37 near Mineola. A tractor-trailer was traveling toward him in the oncoming lane with an oversize cargo: a manufactured home. The truck driver was in the course and scope of his employment with GKD Management L.P., and the cargo had been loaded that morning in Bonham at a manufacturing plant owned by CMH Manufacturing Inc. The cargo was being delivered to a destination in Louisiana. As Savage’s vehicle and the 18-wheeler approached each other, one or more boards flew off the trailer of the 18-wheeler, and one lodged itself in Savage’s windshield. Savage lost control and went off the road. Savage claimed lower back injuries.

The type of board that came off the truck is called oriented strand board, or OSB. The parties also referred to it as roof planking. It was being used to secure the plastic wrap that had been wrapped around the manufactured home for transport to Louisiana.

Savage sued GKD Management L.P., operating as A&G Commercial Trucking. GKD filed a third-party claim against CMH Manufacturing Inc., operating as Clayton Homes-Bonham. Savage then added claims of his own against CMH.

Savage alleged negligence against both companies on a theory of respondeat superior, based on their employees’ conduct, and neither of the defendants disputed the issue of course and scope of employment. Against CMH, Savage also alleged direct negligence, for negligent hiring, training and retention.

Against GKD, Savage alleged that its driver violated Federal Motor Carrier Safety Regulations, including CFR section 393.100, which generally requires truck drivers to secure their cargo and keep it from blowing or falling off.

Savage further alleged that GKD’s driver performed only a haphazard inspection of the cargo before starting his trip. He did not use a ladder to inspect the cargo from on top. Even though the top of the cargo was 14 feet above the ground, all he did was walk around it while standing on the ground, plaintiff’s counsel said.

Savage also alleged that GKD’s driver failed to perform an in-transit inspection within the first 25 miles as required by GKD’s policies and procedures and by Federal Motor Carrier Safety Regulations.

Savage further alleged that GKD’s driver failed to perform any in-transit cargo inspection during the trip. If he did perform an in-transit inspection, it was not documented.

After the incident, GKD’s driver kept going. Savage was able to pull back onto the road and follow him. When GKD’s driver eventually stopped for some unrelated reason, Savage told him what had happened, and he provided Savage with all the required information.

Plaintiff’s counsel noted that GKD’s driver never reported the incident to police and that the incident took place off of the route that the Texas Department of Motor Vehicles had prescribed for the trip. That is, the driver had deviated from the route, and plaintiff’s counsel argued that was the reason he did not call the police. Generally, deviating from the route is a crime, for both the driver and his employer.

As to CMH, Savage alleged negligence on the part of the CMH employee in charge of wrapping the cargo with plastic wrap and securing it with OSB on the morning of the trip. He failed to wrap the cargo properly and secure the plastic wrap properly, Savage alleged.

The basis for the direct negligence claims against CMH was that this employee had numerous performance reviews with CMH indicating that his work quality was “poor.”

Both defendants initially questioned whether the board in question came from GKD’s truck or not. However, it became clear during discovery that it did.

Savage claimed lower back injuries. He testified that when his vehicle left the road, it bounced violently over the terrain until it came to a stop.

Savage was seeking about $193,000 for past medical bills; about $530,000 to $585,000 for future medical bills, including future surgeries and a little less than $1 million for lost earning capacity and lost household services. He was also seeking past and future physical pain, mental anguish, physical impairment and disfigurement.

The defense argued that all the complaints and treatment that Savage attributed to the incident, including any future surgeries, were a result of pre-existing conditions. Savage had lower back problems since the early 2000s.

GKD’s insurer agreed to pay Savage $1,100,000 to settle all his claims. In addition, pursuant to an agreement between GKD and CMH, GKD paid all of CMH’s attorney fees and expenses in the case up to $180,000.

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DERRYBERRY ZIPS WADE LAWHORN, PLLC

http://www.dzwlaw.com and http://www.urhurt.com

 

 

JUVENILE LAW

The Basics Every Parent Should Know.

(Some text forwarded from a State sponsored website.)

Juvenile cases may include charges that a child is delinquent, dependent, or in need of supervision. A delinquent child is a one who has committed an offense which, if that child were an adult, would be considered a crime. A dependent child is a one who is orphaned, neglected, or abused and in need of care. A Child in need of supervision (CHINS) is one who committed an act which, if the child was an adult, would not be classified as a crime, but is in need of care or rehabilitation. A child in need of supervision may be habitually truant, disobedient to his parents, or a runaway. A serious juvenile offender is a child adjudicated to be delinquent and the delinquent acts charged in the petition would be similar to an adult committing a Class A felony, a felony resulting in serious physical injury, or a felony involving physical force, a deadly weapon, or a dangerous instrument. A child adjudicated to be a serious juvenile offender must be committed to the Department of Youth Services for a minimum of one year. A multiple needs child is one coming to the court’s attention who is at risk of being placed in a more restrictive environment because of emotional or mental problems, dependency, delinquency, or alcohol or drug dependency and whose needs require the services of two or more state agencies. These children are referred by the court to the county children’s services facilitation team for evaluation and recommended service plan. The court may accept or modify the service plan if the court determines it is in the best interest of the child to do so and order the provision of the services.

How do Juvenile Cases Get Filed?

An individual, including a law enforcement officer, a parent, a relative, or a neighbor, who has knowledge that a juvenile has committed a delinquent act, is in need of supervision, or independent, may file a complaint with the juvenile court. A juvenile intake officer will review the complaint to ensure that it is sufficient and that the court has venue and jurisdiction and will decide whether a normal petition will be filed with the court. The intake officer will notify the parents of the child’s detention and advise the child and parents of their rights, including the right to have an attorney present at all proceedings.

One of the most important decisions made by the intake officer is whether or not a child should be released to the custody of the parents or placed in a licensed juvenile detention facility or, in the case of dependency and CHINS cases, placed in the care of the Department of Human Resources under what is termed “shelter care.” Any time a child is detained, a hearing must be held within 72 hours in order that the juvenile judge can determine whether the child should remain in detention or in shelter care or be released into the custody of the parents.

Juveniles committing certain minor and first-time offenses may be handled without judicial action. The intake officer may withhold the filing of a formal delinquency or CHINS petition, and may attempt, with the consent of the child and the parents, to make a satisfactory informal adjustment. Under an informal adjustment, the child and the parents voluntarily agree to abide by conditions established by the intake officer. Such conditions may include counseling, curfew, required attendance at school, or other reasonable conditions. The informal adjustment process cannot continue beyond a period of six months. If the juvenile and the parents abide by the terms of the informal adjustment agreement, no petition will be filed and the charges against the child will be dismissed. If the juvenile or the parents violate the agreement of the informal adjustment, the intake officer may proceed with the filing of a formal petition.

Once the petition is filed, the juvenile case will be set for trial, which, in the juvenile court, is called an adjudication hearing. At any time after the filing of a petition in a delinquency or a need of supervision case and before the holding of the adjudication hearing, the juvenile case may be handled by a consent decree. The consent decree is an agreement between the youth, the parents or guardians, and the judge. Under a consent decree, the proceedings of the court are suspended and the juvenile is placed on probation in accordance with terms and conditions agreed upon by all parties. If the juvenile complies with all conditions of the consent decree, the petition will be discharged. If the juvenile fails to abide by the terms and conditions of the decree, the petition will be reinstated and the case will proceed to adjudication.

The Adjudication Hearing

All juvenile proceedings are confidential, and juvenile trials or adjudication hearings are heard by a judge without a jury. The hearing is closed to the public. Present at the hearing will be the juvenile, the defense attorney, parents or guardians, the district attorney who will represent the state, the victim(s) of the crime, the juvenile probation of officer, and, in dependency cases, a representative of the Department of Human Resources.  At the adjudication hearing, the judge will explain to the parties their rights, the substance of the petition and the specific allegations, the nature of the adjudication hearing, and the alternatives that are available to the court should the allegations be admitted or proven. The court will then inquire of the juvenile whether he or she admits or denies all or some of the allegations contained in the petition. An admission of the allegations is similar to a plea of “guilty” in adult court; a denial of the allegations is similar to a plea of “not guilty.” If a juvenile fails or refuses to admit any of the allegations, the judge will enter a denial.

If the juvenile denies the allegations of the petition, the hearing will continue and the testimony of witnesses will be taken. The procedures for conducting the adjudication hearing are similar to those of a civil bench trial, that is, a trial by a judge without a jury.

At the close of the hearing, the court shall find that either (1) the facts alleged in the petition are true and the child is dependent, in need of supervision, or delinquent and in need of care or rehabilitation or (2) the facts alleged in the petition are not true and the child is not in need of care or rehabilitation, in which event, the petition must be dismissed.

The Disposition Hearing

Following the adjudication hearing, the court will hold a disposition hearing which may be conducted immediately or held at a later date. In delinquency and CHINS cases, the court can transfer legal custody, require public service, place the youth on probation, and/or require restitution. In delinquency cases, the youth may be committed to the Department of Youth Services. The period of time a youth is required to stay with the Department of Youth Services is determined by the department and not by the judge.

Where a child has been found dependent, the court will address the issue of the custody of the child and whether or not the child’s custody should be placed with the parents or with other guardians, or whether the child should be made a ward of the state. In those cases where the custody of the child is removed from the parents, hearings will be held periodically to review the custody issue. This process of judicial review will continue until the child is returned to the custody of the parents, until parental rights are terminated and permanent placement is made, or until the child reaches 21 years of age.

The juvenile court may at any point in the proceedings, make parents or guardians parties in juvenile cases and require the parent or guardian to perform reasonable acts necessary to promote the best interests of the child, such as attending counseling sessions or submitting to random drug screens.

Transfer to Criminal Courts

When a child 14 years of age or older commits an act which would constitute a crime if it were committed by an adult, the district attorney may petition the juvenile court to transfer the youth to the adult court for criminal prosecution.

When a petition for transfer is filed, the juvenile court conducts a hearing to determine whether it is in the best interest of the youth or the public to grant a motion to transfer. If, after hearing all the evidence, the court finds that there are reasonable grounds to believe that the allegations against the youth are true and correct, and further finds that the youth is not amenable to the services provided through the juvenile court, the court may grant the motion to transfer the case.

A conviction or youthful offender adjudication of a child transferred and tried as an adult terminates the jurisdiction of the juvenile court over pending and future offenses. This is referred to as “once transferred, and convicted, always transferred.”

Appeals

Any aggrieved party, including the state or any subdivision of the state (except in criminal cases, delinquency cases, and CHINS cases), may appeal a decision of the juvenile court. An appeal from the juvenile court is taken to one of the two intermediate appellate courts if there is an adequate record or if the parties stipulate that only questions of law are involved. In cases involving minors or adults, the right to a trial by jury must be waived before an appeal can be made directly to the intermediate appellate courts. If these qualifications are not met, the appeal must be taken to the circuit court where the case will be heard de novo.

Appeals are filed in the Texas Court of Criminal Appeals in those cases where a child is adjudicated delinquent or where a motion seeking to transfer a child to the criminal court has been granted. All other cases involving children, including CHINS and dependency cases, are appealed to the Texas Court of Civil Appeals.

 Jurisdiction and Exceptions

Juveniles 16 years of age or older who are charged with a capital offense, a Class A felony, a felony which has as an element the use of a deadly weapon or causing the death or serious physical injury of another or a felony using a dangerous instrument against certain officials, or trafficking in drugs are expressly excluded from the jurisdiction of the juvenile court. These juveniles must be tried as adults and, if convicted, may not be tried as juveniles for any subsequent offenses.

Venue in Juvenile Cases

In delinquency and in need of supervision cases, the proceedings are held in the county where the acts constituting the alleged offense occurred. In dependency cases, however, the proceedings are held in the county where the child resides or in the county where the child was present when the proceedings began.

Cases involving Minors and Adults in the Juvenile Court

The Juvenile court primarily exercises jurisdiction over children. However, in some instances, minors and adults may come under the jurisdiction of the court. For purposes of determining the juvenile courts jurisdiction an adult is defined as an individual 19 years of age or older. A minor is an individual who is under the age of 19 who is not a “child,” i.e., an 18 year old. Cases involving minors and adults include charges that a minor or adult contributed to the delinquency, dependency, or need of supervision of a child; proceedings to establish paternity of a child; charges of desertion and non-support; and proceedings for the commitment of a mentally ill or retarded minor. The court, after making a preliminary investigation, may try to resolve the issues through informal adjustment, without prosecution. If the issue cannot be resolved informally, the case would be tried in the same manner as any similar case in an adult court, but without a jury.

Tab Lawhorn is a criminal lawyer and partner at Derryberry Zips Wade Lawhorn, PLLC.  He lives in Tyler, Texas with his wife Zoe, his two loving dogs, Noodle and Fathead, and Mancat, his not-so-loving cat.  For a decade, he has fought for the rights of those juveniles who have been wrongfully accused of criminal activity.  He has founded YOURENOTGUILTY.COM and has been an active donor and community volunteer in East Texas ever since.

FEDERAL DRUG CHARGES, CONSPIRACY, AND GUN CHARGES

Dealing with the Federal Government.

By Tab Lawhorn, Member of Derryberry Zips Wade Lawhorn, PLLC

A rule of thumb with federal drug crimes is that if you have been contacted by the FBI then you have been the target of an investigation for at least a year. Drug crimes can be violations of both state and federal law.  When the US government is prosecuting a drug case, they will not only use the DEA and FBI to investigate the crime, they can also work with state and local law enforcement agencies to gather evidence of a drug conspiracy.  It would not be unusual for the ATF or DPS to aid an ongoing federal investigation.  For instance, a simple traffic stop by a state trooper could result in a drug seizure that could be included in a federal investigation.

I am often asked why double jeopardy doesn’t prohibit the federal government for prosecuting the same conduct that would be punishable under state law.  It’s a good question.  However, because the federal government is a separate and distinct jurisdiction from the state, then defendants can be prosecuted (and punished) under both state and federal law for drug crimes without violating double jeopardy.

Conspiracy is one of the most powerful tools that the US attorney has to prosecute crimes. If you are charged with a drug conspiracy in federal court, this means that you are not only responsible for the drugs you allegedly possessed, but you are also responsible for the drugs that other co-conspirators possessed(even if it is someone you never met).  The result can make a defendants guideline range for punishment astronomical. Conspiracy counts usually show up as Count 1 in a federal indictment with multiple co-defendants.  It is number one for a reason.

Gun crimes in federal court can complicate even the simplest of drug cases. Many times a drug crime also involves a weapon. Depending on the use of the gun and the status of the defendant, federal law imposes strict prison time minimums that can even be imposed consecutively (stacked) to any time received on the drug charges.

All is not lost if you are facing one or any combination of these charges. Although the federal system can seem more complicated, it’s not. In fact, the thoroughness of a federal drug investigation sometimes presents more opportunities to defend someone from the charges.  The Federal Sentencing Guidelines leave little to the imagination of the court or prosecutors such that there are uniform punishment ranges regardless of the court, defendant, or venue.  The key to surviving these guidelines is using a lawyer that is highly proficient in using the evidence and the guidelines to your maximum advantage.

Tab Lawhorn is a criminal lawyer and partner at Derryberry Zips Wade Lawhorn, PLLC.  He lives in Tyler, Texas with his wife Zoe, his two loving dogs, Noodle and Fathead, and Mancat, his not-so-loving cat.  For a decade, he has fought for the rights of those individuals who have been wrongfully accused of federal drug crimes, conspiracy, and federal gun charges. He has founded YOURENOTGUILTY.COM and has been an active donor and community volunteer in East Texas ever since.