Thoughts on the Sherman Bus Tragedy

The sad and preventable tragedy that befell the church group in Sherman, Texas last week has been on my mind. Aside from my prayers for the victims, I have had several random thoughts.

This bus company was apparently a disaster waiting to strike. We ask how any company could be in a position to cause such havoc. The reason is insufficient regulation. For all of you who complain about government involvement in your life, here is an example of our government not doing enough to insure that all buses are properly inspected, and that the companies who operate them have sufficient resources to maintain safe, reliable buses.

Our government agencies involved in safety, such as the National Transportation Safety Board (NTSB) and the Occupational Safety and Health Administration (OSHA), can barely keep up with the fatal accidents. They have inadequate funding and personnel to act in a preventative fashion, or investigate all accidents.

Most accidents involving injuries are investigated by insurance companies and the lawyers representing victims. When a serious accident occurs involving an insured person or company, the insurance company jumps on the investigation immediately, and their goal is to defend the insured from a claim.

Recently, I saw a letter to the editor in the Houston Chronicle. The writer was scolding an accident victim for hiring a lawyer immediately. Let me assure you – regardless of how quickly a lawyer is hired by a victim, we are usually days behind the insurance company. If you or a family member is the victim of a serious accident, you should hire a lawyer as soon as possible. Otherwise, you put yourself at a disadvantage.

The Sherman bus accident victims obviously had no idea they were dealing with a company that had such low standards for safety. Could they have done more? Yes, but is it fair to criticize them? How many of us have put our children on buses for camp or school functions? Have we ever personally investigated the bus company, looked at their maintenance records, performed a background check on the driver, or even kicked the tires on the bus? No. Perhaps we should. I believe our legislature should pass stricter standards for all bus companies, and then adequately fund the agencies responsible for enforcing those standards.

The next question many of us have on our minds is whether the people in charge of the bus company will be held criminally responsible for the deaths of these people. I do not know what charges will be filed, or if anyone will go to jail. However, I can assure you that the criminal law cannot take the place of the civil justice system in dealing with companies that do not act responsibly when they have the lives of others in their hands.

Convicting a person of a crime is a difficult thing to do, particularly for conduct that is less than intentional. Even when a company is grossly negligent, proving they have committed a crime “beyond a reasonable doubt” is much more difficult than proving they were at fault in a civil trial. Lawyers who represent victims are engaged in holding negligent and grossly negligent individuals and companies responsible for causing harm to others. When we sue someone, our goal is to prove the defendant should have behaved in a safer manner. Our goal is to compensate victims. Yes, trial lawyers make money from lawsuits. We also lose money if we pursue lawsuits that have no validity. The “frivolous lawsuits” you hear politicians complain about are largely a figment of political propaganda. Lawyers cannot afford to file frivolous lawsuits. They lose those lawsuits. Unless someone is paying the lawyer by the hour to sue someone (which seldom happens), the market controls the lawyers.

Frivolous defenses, however, are rampant. The number of lawsuits that are disputed on liability (the defendant claims he did nothing wrong) when the facts are obviously in the other direction is staggering. The reason is simple. Insurance companies pay defense lawyers to dispute lawsuits, even valid ones.

Anti-lawsuit organizations (Citizens Against Lawsuit Abuse, Texans for Lawsuit Reform) tell their members to get on juries and hold down damages. I implore all Texans to fight this fire with fire – when you are called to jury service, get on the jury and do justice. If the plaintiff does not deserve to win, do not let the plaintiff win. However, when the defendant has been negligent, and the plaintiff has suffered damages, award the full measure of damages.

One other thought about the Sherman, Texas tragedy. Most of the victims of this crash are going to be undercompensated. Why? Because the bus company cannot have enough insurance coverage to pay all the damages it has caused. What can you do to protect yourself and your family from being victimized twice – once by a negligent driver, and again by an underinsured driver? The answer is to purchase a sufficient amount of “uninsured/underinsured” motorist insurance. This, along with “personal injury protection” insurance, protects you from being left with inadequate compensation when you or a family member is injured by a person who has inadequate insurance coverage. Some insurance companies sell cheaper insurance policies by excluding these two coverages. Do not listen to this type of salesmanship. Always buy as much of these two coverages as you can – they are inexpensive, and they protect YOU.

Steve Waldman -swaldman@gwlawyers.com

Church-Sponsored Assault?

Very few things get people riled up as much as religion, and the relationship between church and state is a hot-button issue for many people. Some people believe strongly in the separation of church and state; others believe religion has a place in public life.

As a lawyer who represents injured people, my views on this point have two elements. First, I have a personal view about the role of religion in public life. Second, I have a view regarding the degree to which religion should affect, or be affected by, judicial decisions.

Our courts serve the role of ultimate arbiter of matters within the control of our government. Since shortly after our government was formed, the Supreme Court declared that in a fight between branches of government, the judiciary had the final say. While this has caused consternation for various people over the years, the principle has generally served us well.

Recently, the Supreme Court of Texas provided a glaring exception. In the case of Pleasant Glade Assembly of God v. Schubert , the Court considered a case where a 17 year old girl who was forcibly held down against her will and subjected to an extensive process by which demons were cast out from her. In the process, the girl suffered minor physical injuries, but she alleged substantial psychological injuries. These psychological injuries ultimately caused her to drop out of school and qualify for Social Security disability. For those of you unfamiliar with the process of qualifying for Social Security disability, it is an extremely difficult process that usually requires extensive proof from reliable doctors.

The Supreme Court, with three Justices dissenting (Chief Justice Jefferson, and Justices Johnson and Green) held that Ms. Schubert was not entitled to bring an assault claim against the church or the people who subjected her to this trauma, because the incident occurred during the course of a religious function in which the Courts have no right to intervene.

To read the opinion, click on the following link:

http://www.texasbarcle.com/materials/digests/opinions/21845.pdf).

Our Supreme Court is treading on dangerous ground, and it is yet another example of what happens when one political party becomes so powerful in a state that its most extreme elements take over. Our courts have, for many years, ruled that there was no protection afforded to activities where a person may suffer substantial physical harm from an activity claimed to be religious. Snake handling, human sacrifice and ordeals such as enduring physical abuse or poison have, at times in the past, been forms of religious expression. This opinion departs from established precedent, and is nothing short of judicial activism.

We have seen our Supreme Court of Texas exercising similar judicial activism in the diminishment of the rights of consumers, patients and other victims of the negligence of others. Our courthouses are becoming increasingly hostile to those of us who depend upon the law to protect us from wrongdoers or compensate us when we are wrongfully injured.

It is important for every Texan, and every citizen, to realize that the day may come when you will need the courts to provide you with a forum to seek justice as a result of an injury. You can count on two things. First, you will be up against an opponent who is either a large corporation or an insurance company, which will have assets and resources far beyond your own. Second, until our courts and our legislature are placed back into the hands of fair-minded, reasonable people, your chances of success will increasingly fall to the interests of large corporations and insurance companies.

This case is yet another warning shot that our courts are out of control. I hope we all remember this when November rolls around, and we have the opportunity to replace the radical Republicans who dominate our courts and legislature with moderate candidates (Democratic or Republican) who believe in the rule of law, the value of precedent, and the rights of victims to fair compensation.

Steve Waldman (swaldman@gwlawyers.com)