I WAS IN A CAR WRECK IN LOUISIANA BUT I LIVE IN TEXAS

INTRODUCTION: Many people from Texas travel back and forth throughout Louisiana every day.  It is inevitable that some of these travelers will end up in a wreck, either on Interstate 10 or on one of the many state highways and Parish roads.  If you are one of them, please accept my sympathies for any injuries or losses you have suffered.   Having handled many cases out of Louisiana, I have written this paper to offer some guidance to victims of Louisiana car wrecks who live in Texas.

WHICH STATE LAW CONTROLS?

Since the accident happened in Louisiana, it is their law that controls.  Even though the insurance company may also do business in Texas, and even though both drivers may live in Texas, the case will be handled according to Louisiana law.  This is fortunate for you as Louisiana personal injury law and Rules of Procedure treat Plaintiffs better than Texas law.

DO I NEED TO HIRE A LOUISIANA ATTORNEY?

No, not necessarily.  If you live in Texas you may want to look for a lawyer in your town or city to help you out with the claim.  A lawyer does not have to be licensed to practice law in Louisiana before he can help you with your claim in Louisiana.  I have settled many cases in Louisiana without filing suit and without making a single appearance In a Louisiana court.  I have found that my clients prefer to hire attorneys from their home state rather than one who offices in another state.

Can a Texas attorney who is not licensed to practice in Louisiana file suit in Louisiana?  Technically, yes he can under a procedure called Pro Hac Vice, a Latin phrase meaning "for or on this occasion only".    A judge in Louisiana can grant a Texas attorney permission to appear in his court for that case only.  In most circumstances, however, this is not advisable.

Instead, your Texas attorney will probably want to associate with an attorney who is licensed to practice in Louisiana, preferably one who practices in the Parish where your accident happened.  (Hiring local counsel is always advisable even in intrastate cases when your attorney files in a Texas county in which he has never litigated before.)  In such situations, it is common practice to hire an attorney who practices in that county to appear in court with your attorney and also to advise him on local rules and local judicial and defense bar personalities.)  Once your attorney hires local counsel in Louisiana, he can then join the case and be included in the pleadings on a Pro Hac Vice basis.    In this way, the attorney you are most familiar with and who offices near you can still stay on the case and help get you the best results possible.  Best of all, retaining local counsel will not increase your attorney fees nor your expenses in any way as any fees charged by local counsel will be paid out of your attorney’s portion of fees.

WHY IS LOUISIANA LAW BETTER FOR PLAINTIFFS?

First, Louisiana does not have the Texas paid or incurred law.  Secondly, Louisiana is a direct action state.

PAID OR INCURRED:  In 2003 Texas passed vast tort reform legislation highlighted by caps on medical malpractice cases and a new way of counting damages called paid or incurred.  This paid or incurred rule has, in my opinion, caused the greatest injustice to accident victims than anything else in the tort reform package.  What the paid or incurred law says is that the jury can no longer consider a Plaintiff’s medical bills in awarding damages for medical expenses.  Instead, the jury will consider only the portion of the bills actually paid by the Plaintiff (through deductibles and co-pays) and by the Plaintiff’s health insurance, Medicare, or Medicaid.   For example, if the Plaintiff was charged $7,500.00 for the emergency room visit but Medicare paid only $950.00 (I am not exaggerating the amounts here, as this is a typical scenario) the jury can only award $950.00 in damages to compensate the Plaintiff for the emergency room bill.  To add insult to injury, Plaintiff now has to turn around and pay most of that back to Medicare to settle Medicare’s lien.    Louisiana does not have such a draconian rule and this makes a big difference.  Let’s say your total medical expenses are $125,000.00 but your health insurance paid each provider at the pre-agreed rates for a total of $35,000.00.  In Texas, the jury can award you only $35,000.00 for your medical expenses but in Louisiana, the jury can award you $125,000.00.  This is a huge difference.  This is why the same case may have a settlement value of $75,000.00 in Texas but a settlement value of $350,000.00 in Louisiana.

DIRECT ACTION STATE:  In Texas, a Plaintiff sues the at-fault driver and not his insurance company.  In fact, the jury cannot even be told whether or not a Defendant had insurance at the time of the accident.  In Louisiana, by contrast, the Defendant’s insurance company is named as a Defendant and the pleadings will allege that at the time of the accident, the Defendant was insured by the named insurance company and further allege that the insurance was in full force and effect.  This is a big advantage for the Plaintiff as the jury will know they will not be taking money out of the poor Defendant’s pocket but out of a big insurance company.

BE AWARE OF THE LOUISANA STATUTE OF LIMITATIONS:

Your Texas attorney had better be aware of the biggest trap in handling a personal injury case from Louisiana – a one-year statute of limitations.  In Texas, our statute of limitations for personal injury cases is two years.  Texas attorneys handling personal injury cases get into a two-year mindset that is so ingrained they don’t even need to look at a calendar to know when the statute of limitations deadline is getting close in a particular case.   Louisiana’s one-year statute can come awfully fast.  Your attorney has to be mindful of this fast-approaching deadline and be prepared to file suit within eight months or so of your accident.

CONCLUSION:

If you have been involved in a Louisiana accident and are worried about how you are going to find an attorney who practices in the Parish of the accident, you can cut this worry out of your mind.  You can rely on your Texas network of friends and family, or google an attorney near you that you feel comfortable with.  You may be able to get your case resolved without traveling any further than your attorney’s office. 

Best of luck.

Robert Rodriguez
Law Offices of Robert Rodriguez