Litigator of the Week: Long Route to Victory

October 29, 2012 | Articles, Tim Herman

By Miriam Rozen

Texas Lawyer

Tim Herman says it took eight years for his client’s complicated breach-of-contract dispute against Dallas Area Rapid Transit (DART) and the Fort Worth Transportation Authority (The T) to get to trial, but it was worth the wait. In an Oct. 5 final judgment, his client Agent Systems Inc. won $1.41 million — $850,000 in damages plus $566,000 in prejudgment interest.

“It gives us some satisfaction because I’ve been trying to get them into court for years,” Herman, a partner in Austin’s Howry, Breen & Herman, says of DART and The T, both quasi-government agencies.

In its Sept. 24, 2010, amended petition in Agent Systems Inc. v. Dallas Area Rapid Transit, et al., the plaintiff alleged it entered into a 2009 contract with the defendants to produce fare box systems, but the defendants refused to pay for them and for the material necessary for the prototypes.

In its Oct. 2, 2009, answer, The T argued among other things that Agent Systems was barred from recovery “pursuant to the doctrine of the law of the case” and that the statute of limitations barred the plaintiff’s claims. In its March 18, 2008, answer, DART alleged among other things that the court lacked subject matter jurisdiction and that Agent Systems had assumed risk when it produced the fare box systems.

After two weeks of trial testimony, the jury issued a verdict on Nov. 22, 2011, that found the defendants failed to comply with the contract. Jurors awarded Dallas-based Agent Systems $850,000 in damages for the costs to produce the fare box systems. In his final judgment, 236th District Judge Tom Lowe of Tarrant County added $566,000 in prejudgment interest for a total of $1.41 million.

Albon O. Head Jr., a partner in the Fort Worth office of Jackson Walker who represents The T, says his client will continue fighting the plaintiff in court. “We think that the judgment was entered incorrectly,” he says.

DART senior associate general counsel Harold McKeever says the agency will appeal the final judgment. McKeever says the case presented difficulties for both sides because the factual background was based on events that occurred more than a decade ago.

Wilkerson Listens, Strives to Make a Difference

September 5, 2012 | Articles, Glen Wilkerson


To Glen Wilkerson, it’s all about the people.

Whether it’s a client, a fellow lawyer, or a judge, the long-time Austin attorney has perfected the art of fully engaging with whoever he is sitting across from.

So it’s no surprise that Wilkerson, who joined the law firm of Howry, Breen & Herman LLP over the summer, identified one of the biggest challenges for the profession as making the cost of litigation more reasonable. “Most folks as individuals cannot afford to litigate even what may appear to be the simplest of disputes,” he said. That bothers Wilkerson. And that fact makes him a good candidate for our Wednesday interview.

1. Describe your legal practice?

GW: Howry, Breen & Herman LLP is primarily a civil litigation trial firm. These cases can be in state court, federal court, or, as is becoming more common, arbitration. The types of cases range from Plaintiff’s personal injury, commercial and construction to commercial, real estate, construction and professional negligence defense which is an accurate description of my practice over the last 8 to 10 years. Our clients vary from individuals, small businesses, to large corporate and/or institutional entities. Our client objective is to zealously but ethically advocate our client’s causes with the goal of reaching an acceptable outcome, hopefully on some economic basis that makes sense in the context of what and how much is in dispute.

2. What are the biggest challenges of those you interact with on the legal front, and what is the key to helping them resolve those challenges.

GW: The biggest challenge is the cost of litigation. It is too expensive. Most folks as individuals cannot afford to litigate even what appear to be the simplest of disputes. The result of this reality is that the court house – – and access to public justice – – is off limits to all but a select few who are either very poor or those who are more wealthy. The paramount key to keeping the cost of litigation more within limits is teamwork between lawyers and our judges. Judges must be involved with limiting cost, and certainly the exploding cost of “electronic discovery” (i.e. emails etc.). If they are not involved, then the lawyer who hopes to control costs has no hope of avoiding an aggressive opposing advocate who has no practical limit on what his or her client will spend. Some judges are very willing to get involved in this process. Others are not. Our legal rules for resolving disputes are sound and make good sense. But they cannot be enforced to perfection in most cases in that the costs will be great for the amount in controversy. If this issue is not resolved, soon a high proportion of citizens will attempt to represent themselves. Legal Zoom is not just a product. It is a harbinger of the future for the masses if judges, lawyers and the legislature do not get their act together and make the system work for all citizens with less transaction costs.

3. What are the advantages to practicing law in Austin?

GW: The lawyers in Austin are of the highest quality and comparable to any city or location in the country. Our Judges on every level – – city, state, federal – – are impartial, well respected and interested in reaching a fair and common sense result with the bounds of the law. We are blessed to be able to state to our clients that they can almost always get a fair trial in our area.

4. How would you improve the legal profession if you could?

GW: I would dramatically increase the interaction of the lawyers and the judges. When I started my practice, you could have personal access to a district judge. You could get something done at a fraction of the cost of what the time and effort is today. You knew with a phone call what could be done and what should be done. This gave you the ability to reduce the costs to the client to achieve a reasonable result. If the lawyers are left to themselves, there is too much of a driving incentive to keep the file open so that there is no control over costs. The judge can do so much to move the process along – – fairly and with due regard for all parties. Whether this will ever happen again is an open question. I am not holding my breath

5. What or who was your biggest influence in becoming a lawyer and why?

GW: Fear. My wife. I got married. Two months later I started law school. I had no job prospects if I failed. My wife was smart, capable, a hard worker, and had a wonderful job. I was under the gun. I had met one lawyer for about 10 minutes before I went to law school. I was blessed to go to the University of Texas Law School. At the time I was in law school, Texas was, I believe, in the top five law schools in the country. Dean Page Keeton was a legend. If you applied yourself, one had all the opportunity and the world at your doorstep.

Texas Super Lawyers for Seven Years

June 5, 2012 | Articles, Randy Howry, Sean Breen, Tim Herman

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Top Texas Verdicts of 2011

May 28, 2012 | Articles, Jay Paul Warren, Sean Breen

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Man, 23, dove into shallow pool
at apartment and broke his neck.

Verdict: (P) $12,393,542.00

Case Type: Swimming Pool, Recreation

-Swimming Pool, Premises Liability –

Apartment, Negligence – Negligence Per Se

Case: Jordan VanDusen v. Aspen Square Management Na Longhorn Bentley LLC, d/b/a Longhorn Landing Apartments, No. D-1-GN-09-001608

Venue: Travis County District Court, 53rd, TX

Judge: Orlinda Naranjo

Date: 01-24-2011

PLAINTIFF(S) Attorney:

  • Sean Breen; Howry, Breen & Herman; Austin, TX for Jordan VanDusen
  • Jay Warren; Howry Breen & Herman; Austin, TX for Jordan VanDusen


  • David Felton Ph.D.; Clinical Psychology; Austin, TX called by: Sean Breen, Jay Warren
  • Mary Gonzales M.D.; Physical Medicine; Austin, TX called by: Sean Breen, Jay Warren
  • T. Harrell Ph.D.; Life Care Planning; Austin, TX called by: Sean Breen, Jay Warren
  • John Trapani Ph.D.; Economics; New Orleans, LA called by: Sean Breen, Jay Warren
  • Kim Tyson; Aquatics; Pflugerville, TX called by: Sean Breen, Jay Warren
  • Richard Hinrichs Ph.D.; Diving; Phoenix, AZ called by: Sean Breen, Jay Warren
  • Christopher Lakso; Animation/Computer Animation; Phoenix, AZ called by: Sean Breen, Jay Warren

DEFENDANT(S) Attorney:

  • Jeff Ray; Ray Valdez, McChristian & Jeans; El Paso, TX for Longhorn Bentley LLC, Aspen Square Management


  • Farhad Madani; Pools; Austin, TX called by: Jeff Ray
  • Robert Bux M.D.; Toxicology; Colorado Springs, CO called by: Jeff Ray
  • Stephen Horner Ph.D.; Economics; Corpus Christi, TX called by: Jeff Ray
  • Donna Johnson; Rehabilitation Counseling; Corpus Christi, TX called by: Jeff Ray
  • James McElhaney Ph.D., P.E.; Biomechanics; Durham, NC called by: Jeff Ray
  • Roger Nightingale Ph.D.; Biomechanical; Durham, NC called by: Jeff Ray
  • John Reid Ph.D.; Psychology/Counseling; San Antonio, TX called by: Jeff Ray
  • Richard Senelick M.D.; Physical Rehabilitation; San Antonio, TX called by: Jeff Ray

Insurer: Lexington Insurance Co. for both defendants (policy limit $1 million) St.Paul Fire and Marine Insurance Company for both defendants (policy limit $25 million) American International Specialty Lines Insurance Co. for both defendants (policy limit $25 million)

Facts: On the night of June 11, 2005, plaintiff Jordan VanDusen, 23, a computer consultant and musician, was at a party at Longhorn Landing Apartments, an Austin apartment complex managed by Aspen Square Management Austin. VanDusen was a former resident of the complex, which caters to college students. He and other partygoers were drinking. At around 2 a.m., VanDusen and some friends entered one of the complex’s two swimming pool areas, which were open 24 hours a day, seven days a week. VanDusen attempted a shallow “racing dive” into the pool, but the water level was 18 inches low, resulting in a steeper angle of entry. He hit his head on the bottom and broke his neck. He is paralyzed. When filled to normal level, the pool was between 3 feet, 6 inches deep and 4 feet, 6 inches deep. It was low that  night because of a pool equipment problem. The complex had added water to the pool on June 10. At about 10 p.m. on June 11, security guard Amanda Walker came on duty and noticed that the water level was low. The apartment manager was still on site at this time. At about 1:25 a.m., Walker and another guard walked by the pool again and noted that it was low, and alerted a supervisor. The supervisor called all emergency contacts for the management company, and according to the plaintiff, no one responded. Several Aspen Square employees lived at the complex. The property owner was Longhorn Bentley. VanDusen sued Aspen Square and Longhorn Bentley for premises liability, arguing that, by common law and statute, the pool should have been closed because of the water level. VanDusen had been at the pool more than a hundred times and safely performed many dives there, as had many others, including employees of the complex. VanDusen acknowledged a momentary lapse in judgment, that he should not have dived into the pool that night, and that he regrets not noticing the water level was low before diving.  Aspen Square Management, which was operating 80 properties nationwide, had no written risk management policy or written safety policies for its pools, its most dangerous amenity.  According to the plaintiff Longhorn Landing allowed and encourage drinking in and around the pool, and its pool safety man was unaware of applicable laws and codes. VanDusen also argued that the complex’s local emergency call system and personnel were inadequate and that, the weekend before the incident, an on-call worker ignored three emergency calls. The security guards did not have authority to use the locks that were restring on the gates or the “pool closed” signs that were in a nearby shed, the plaintiff argued. According to the plaintiff, no one employed by the complex knew of the incident, and the pool remained open until Monday, June 13. Plaintiffs’ counsel said they argued for 7f5% fault on defendants. Defense counsel said Plaintiffs’ counsel argued for 80 to 90 percent fault on defendants. The defendants denied the allegations and argued that Jordan was at fault. They noted that, about 45 minutes after the incident, Jordan’s blood alcohol level was .09 and that he was aware of the numerous, conspicuous “no diving” signs around the pool. Also, according to the defense, an employee did respond to a 1:25 a.m. emergency page, though not till after VanDusen’s injury. Plaintiff’s counsel said the defendants were never able to identify the employee. The defendants were treated as a single entity (“Aspen”) in the jury charge. The jury questions were: 1. Whether VanDusen was negligent; 2. Whether Aspen was negligent per se for failing to maintain the water at the required level, failing to maintain pool equipment as required, failing to provide the required lighting, or failing to close the pool if required; 3. Whether Aspen was otherwise negligent; 4A. Comparative responsibility between Aspen for negligence per se only and VanDusen; 4B. Comparative responsibility between Aspen for other negligence only and VanDusen; 5. Damages

Injury: VanDusen broke his neck and is permanently paralyzed from the neck down. He was hospitalized from June 12 to July 5 and was immediately diagnosed as a quadriplegic. Initial findings showed C4 fracture with C4-onC5 subluxation. He underwent a fusion of C4 and C5 and returned to the intensive care unit. He then underwent a tracheotomy tube placement, PEG tub placement and several bronchoscopies. He was then transferred to The Institute for Research and Rehabilitation in Houston from July 5 to August 22 and underwent physical occupational, and speech therapies. He also attended the RAPS session for spinal chord education. At discharge, he was sitting for four hours twice a day at 80 degrees. When his insurance company dropped coverage, he transferred to a New York hospital and obtained Medicaid and Medicare benefits. He spent Aug. 22 to Sept. 23 at one New York hospital and Sept. 23 to Nov. 23 at Mount Sinai Medical Center. He experienced increasing episodes of autonomic dysreflexia, headaches, and severe pain. Bladder and bowel management was ongoing. He also developed a stage IV decubitus ulcer. VanDusen continued to be hospitalized off and on as needed for various medical complications relating to quadriplegia, including severe pain, decubitus ulcers, and respiratory illnesses. He requires round-the-clock care. At the time of the incident, his attorneys said, VanDusen was a successful musician, with a promising life ahead of him, and he was active, successful, ambitious, and engaged in building a productive future. He sought past and future medical bills, lost earning capacity, disfigurement, physical impairment, and pain and suffering, and he asked the jury for a total of $25,000,000, including $1.5 million in past medical. His attorneys reported that the life care plan was $10 million, and defense counsel reported that it was $11.3 million.

Verdict Information: The jury found the defendants negligent and, as to the water level alone, negligent per se. The jury also found VanDusen negligent. The first comparative fault question was answered 49 percent for the defendants negligence per se only, and 51 percent for VanDusen. The second comparative fault question was answered 51 percent for the defendants for other negligence only and 49 percent for VanDusen. The jury found damages of $12,393,542. As requested by the plaintiff’s attorneys, the court entered judgment against the defendants jointly and severally in the amount of $6,636,709.25, which is the sum of 51 percent of the damages and prejudgment interest. The defendants plan to appeal.

Jordan VanDusen $1,500,000 Personal Injury: Past Medical Cost $4,645,789 Personal Injury: Future Medical Cost $286,000 Personal Injury: Past Physical Impairment $1,714,000 Personal Injury: Future Physical Impairment $195,947 Personal Injury: Past Lost Eearning Capability $1,051,806 Personal Injury: Future Lost Earnings Capability $143,000 Personal Injury: Past Pain and Suffering $857,000 Personal Injury: Future Pain and Suffering $286,000 Personal Injury: Past Disfigurement $1,714,000 Personal Injury: Future Disfigurement

Editor’s Comments: This report is based on information that was provided by plaintiff’s counsel and defense counsel.

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How to Boost Your Odds of Getting Paid on your fire damage insurance claim if you go it alone.

September 8, 2011 | Articles, Sean Breen

Some people decide to go it on their own with handling fire damage claims with the insurance companies instead of getting help and legal protection. If you choose to do it on your own and if you want to increase the likelihood that your insurer writes that check that you paid your premiums for, there is much to do.

Don’t dillydally when it comes to reporting your claim: Insurance companies generally handle them first come, first serve.

Once your claim is reported, get your claim number and write it down. Having that number will make your life — and the insurance company’s — easier.

Find out a little about the adjuster who will come to your house to assess the damage. You want to know if he is an employee of the insurance company or an independent adjuster hired by your insurer. The answer matters: If the person is independent, get the name of the actual insurance company adjuster whom the independent adjuster is sending your information to, and find out whether they are authorized to make claim decisions and payments on behalf of your insurance company.

Beware of firms that demand up-front fees for services, regardless of the outcome they negotiate on your behalf with the insurance company. Public adjusters work purely on a contingency basis, ensuring that a homeowner does not pay anything unless he or she receives some form of settlement, says David Charles, president of Catastrophic Claims Consultants.

Build Your Evidence

Anticipate the possibility of push-back from the insurance company, and be ready to hit them with documentation. When you file a claim, HBH advises immediately starting a notebook detailing all your contacts with the insurance company. List the date, time and a brief description of what went down. If you need to amplify later, this will give you a leg to stand on. If an adjuster says he or she will not come out, for example, write it down. If an adjuster is a jerk, note that too.

You own a ton of stuff. Make a list of it all. Better still if you took photos of your possessions before the fire, but If you didn’t, don’t sweat it. Those snapshots from a party may offer proof of your TV that was destroyed, or the rug that was ruined.

Do, however, take photographs of the damage before doing any repair work to your home. Also, make an itemized list of all damage sustained during the fire and aftermath.  Do all you can to minimize secondary damage: Your homeowner’s policy requires that you “mitigate damage, ” which means try to make it less.

You’ll want to do some homework by getting a repair estimate from a contractor to help you in talking with the adjuster. Hang on to receipts for any emergency repairs, and costs such as if you have to stay in a hotel. This may be reimbursable under the “additional living expense” portion of your homeowners’ policy. Save receipts from temporary repairs and cleanup efforts.

If you need to leave your home, make sure your insurer knows how to reach you.

Require repair contractors to provide proof that they’re licensed and insured. Check them out with the Better Business Bureau (

Get descriptions of repair work and cost estimates in writing. Never pay for repairs in advance.

Get your insurance company’s approval before major repairs.

Once an insurance company has received your claim, the company has 15 days to notify you that they have either accepted or rejected your claim.

Most homeowner’s insurance policies allow for an appraisal process to settle claim disputes.

Fight Back

Make sure you follow up on your case: Don’t just file the claim, sit back and wait for your payment. Check in regularly with your insurance agent or company on the progress of your claim. If your insurer denies your claim or offers a piddly amount, don’t just accept it. HBH advises demanding that the company identify the language in your homeowners’ policy that served as the basis for denying your claim or offering so little. The company may be right and you may not know it. Once the company pinpoints the key language in the policy, you should be able to make this determination. Then too, it could be that the company has craftily put new limitations into the policy and didn’t make them clear to you. If you feel misled, weigh whether you want to contact an attorney.

For example,  the introduction of percentage deductibles (up to 10% of the value of a home), could greatly shift the cost of the fire from insurance companies to consumers. The practice of shifting the cost of previously insured events back to consumers is acceptable, as long as consumers are clearly given the option to select the level of coverage they want with fully informed consent.

Another new way insurers can pull a “gotcha” is by putting a limit on replacement cost payments, which might come into play in the event that a home is totally destroyed. A typical cap is 20% above the face value of the policy.  If costs surge because of the spike in demand for materials or labor following a major event like this fire (or if the state does not monitor price gouging sufficiently) this limit might apply. For example, if a home was expected to cost $200,000 to replace and that amount was the limit on the policy, the insurance company would pay no more than 20% more, or $240,000. If the surge in construction costs due to extreme demand caused the price of replacing the home to jump to $300,000, the homeowner would be short $60,000.

Know Your Rights

The squeaky wheel gets the grease. Do complain to the powers that be in the insurance company if you feel like a denial was unwarranted or the reimbursement too little. Don’t stop there. Complain to your state insurance department: It will make an inquiry with your insurer.  See a lawyer if you want to take it a step further.

Once the insurance company tells you the reasons for its action, it legally can’t produce new reasons for denying payment or making a low offer at a later time. You have locked them in — a major advantage for you.

If you review the policy and find that, without stretching your imagination, it seems plausible that you should get the full amount of your claim, you will likely win if you go to court.  Courts consistently rule that if an insurance policy is ambiguous, the reasonable expectation of the insured party will prevail since the consumer played no part in writing the language of the insurance policy.

Contact the experienced attorneys at Howry, Breen & Herman, LLP if you need help.

The Austin based attorneys at Howry, Breen & Herman, LLP are experienced in representing homeowners, farmers, ranchers, businesses and churches in dealing with insurance companies on fire damage claims and available to assist you to see that you are paid the maximum of what you are owed on your claim. We can help ensure you get the maximum amount to which you are entitled. Call us at 1.800.404.9441.

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HowryBreen in Texas’ Best Lawyers 2009

November 1, 2009 | Articles, Randy Howry, Sean Breen, Tim Herman

Feature article on HowryBreen in Texas’ Best Lawyers 2009. Click here to download the PDF.

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