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Texas Super Lawyers for Seven Years

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

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Retired Austin officer fired by Texas police union may sue former employer

May 31, 2012 | In The News, Sean Breen

By Patrick George

AMERICAN-STATESMAN STAFF

Former Austin Police Association President Mike Sheffield is seeking depositions for a possible lawsuit against his ex-employer, the largest statewide police union in Texas, which fired him last year.

Sheffield, who was fired in July from his job as a training coordinator and field service representative for the Combined Law Enforcement Associations of Texas, has filed a petition in Travis County state District Court seeking information about allegations of criminal acts he said the union made against him.

The petition said Sheffield is seeking documents and statements from union Executive Director John Burpo, board President Todd Harrison and others.

“We have reason to believe the board members of CLEAT circulated defamatory comments and wrongfully accused Mr. Sheffield of committing a crime,” said Sheffield’s attorney, Austin lawyer Sean E. Breen.

John Curtis, CLEAT’s corporate counsel, said the union is considering whether to pursue criminal charges against Sheffield. CLEAT provides legal representation, lobbying and other support services for Texas’ law enforcement officers.

“He took and destroyed work product we strongly believe belonged to this organization,” Curtis said, saying officials there believe Sheffield violated the state’s computer crime laws.

Breen said that Sheffield was specifically accused of deleting information from a CLEAT computer and that the accusations are false. He said that multiple agencies — including federal authorities and district attorneys in Travis and Williamson counties — did not bring charges against Sheffield.

“In law enforcement, reputation is everything,” Breen said. “When someone is accused of a crime, it cuts to the very heart of their integrity as a police officer.

Law enforcement officials discussed the matter last year, but CLEAT never formally asked the Travis County district attorney’s office to investigate the claims, Assistant District Attorney Gail Van Winkle said.

Sheffield served as president of the Austin Police Association union from 1998 until 2006. After retiring from the Police Department, he was employed by CLEAT until last year.

Breen said Sheffield has not decided whether to sue CLEAT and is pursuing a federal claim through the National Labor Relations Board to get his job back.

Curtis said CLEAT is looking into asking a federal judge to stop the possible lawsuit until the labor claim is resolved.

“This is just another legal shenanigan he’s pulling,” Curtis said. “The other shoe hasn’t fallen yet. It’s going to be a bumpy road.”

According to a CLEAT memo from July, Sheffield was fired for “interfering with the (Austin Police Association)” and for attempting to publicly discredit the statewide union.

Sheffield said he believes he was fired after he raised concerns about an arrangement between CLEAT and the Austin Police Association. Under that arrangement, Harrison, an Austin Police Department sergeant, worked for CLEAT full time funded by officers’ earned sick time while CLEAT gave the Austin Police Association $50,000. That was not mentioned in Sheffield’s termination memo, which he provided.

After the American-Statesman reported on the agreement, CLEAT began reimbursing the City of Austin for Harrison’s salary and benefits. He is currently vice president of the Austin Police Association.

Contact Patrick George at 
445-3548

CORRECTION: This story originally stated Mike Sheffield had been cleared of wrongdoing. Charges have not been brought against him.

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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

Expert:

  • 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

Expert:

  • 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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Technology Reveals Story Behind $12.4 Million Swimming Pool Mishap Verdict

May 24, 2012 | Sean Breen

Howry Breen & Herman lawyer uses expert video reconstruction to secure No. 1 Premises Liability verdict in Texas.

At first glance, video footage that recorded 23-year-old musician Jordan VanDusen’s diving accident at an apartment complex swimming pool appeared to indicate the property owner had little or no responsibility for VanDusen’s life-changing injuries when he dove into a “no diving” pool.

Recorded on a hand-held video camera by a friend, the video shows young adults carousing around a pool in the courtyard of an Austin apartment complex before VanDusen dives into the pool. VanDusen was rendered a quadriplegic with very limited use of his arms when he struck the bottom of the pool, which had a water level that had fallen almost two feet below safe standards. Tests later revealed that VanDusen was legally intoxicated at the time of his injury.

While the video seemed to illustrate an open-and-shut case to the untrained eye, it was just the start of work for trial lawyer Sean Breen of Austin-based Howry Breen & Herman. Howry Breen & Herman enlisted a team of diving experts, physicists and animation professionals to analyze the video. As they converted the raw video into a sophisticated series of animations that, in conjunction with measurement and scaling of the pool, dissected the dive from different angles and vantage points, the truth began to emerge. The analysis revealed that the young man dove into the pool at a safe angle and that he would have suffered no injuries at all if the water had been maintained at a safe level, which is required by both state and municipal law.

“What we found in this analysis and what we showed to jurors in Jordan’s trial was very telling,” Breen says. “Jurors were able to see that Jordan’s dive into the water that night was not reckless at all — it was actually a dive that the Complex knew many kids were doing and that would have resulted in no injury whatsoever if only the property owner had adequately serviced the pool and maintained a safe level of water in it.”

In fact, a security guard had noticed the low level before the accident and sent an emergency page to the 24 hour maintenance department, but the page went unanswered and the pool remained open in violation of the law.

With the property owner unwilling to take responsibility for its role in causing Jordan’s injuries, and its insurance company making lowball settlement offers, Breen and the trial team proceeded to trial. Jurors agreed that the property owner was 51 percent responsible for the injuries and awarded $12.4 million in damages. Jurors indicated that the animation and expert analysis of the dive played an important role in their deliberations. The $12.4 million dollar jury verdict was the top premises liability verdict in Texas and the 16th largest verdict overall, according to Texas Lawyer.

“We worked very hard for this verdict,” Breen says. “We said all along that Jordan bore some responsibility for his injuries. All we asked was that the property owner accept responsibility as well. Thankfully, we were able to use the video and animations to tell the true story of what happened that night and the jury did the rest.”

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 (http://austin.bbb.org).

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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Paralyzed musician gets $6.2 million in Travis County trial

September 2, 2011 | In The News, Sean Breen

by Chuck Lindell, America-Statesman Staff

A Travis County jury has awarded $6.2 million to a former Austin musician who, after drinking at a private party, was paralyzed when he dove into an underfilled apartment complex pool in 2005.

Jurors determined that the man, Jordan VanDusen, was 49 percent responsible for his injuries and the owner of Longhorn Landing Apartments was 51 percent liable for failing to close a dangerous pool or warn swimmers that water levels had fallen about 11/2 feet.

The division of liability means VanDusen, left a quadriplegic with limited use of his arms, would receive 51 percent of the $12.4 million in damages if the judgment stands. Jurors returned the verdict Monday night after two days of deliberations and a nine-day trial.

“We never, ever contested responsibility for Jordan,” said Sean Breen, VanDusen’s lawyer. “He admitted he made a mistake — a momentary, thoughtless mistake.”

But swimmers also should be able to expect that an open pool is safe to use, Breen said. Instead, he said, managers of the apartment complex at 4700 E. Riverside Drive failed to close the pool even though employees noticed that water levels had dropped and even though state and city laws require underfilled public pools to be closed.

In addition, testimony showed that Aspen Square Management — which owned the apartment complex when VanDusen was injured but sold it in October — did not have appropriate safety procedures in place, Breen said.

VanDusen was a guitarist, singer and songwriter for the now-defunct band JVD who had moved from New York state to Austin with bandmates two years before the accident. A videotape, shot by a friend and played for jurors, showed a group roughhousing around the pool at 2 a.m. before VanDusen, then 23, dove into an area that should have been 4 to 41/2 feet deep but instead was 21/2 to 3 feet deep.

Jeff Ray, lawyer for Aspen Square, said the company will appeal the verdict.

Ray argued that VanDusen was solely responsible for his injury because the pool’s depth was obvious, signs prohibited diving at the pool and VanDusen’s judgment was impaired by alcohol. Blood tests after the accident showed VanDusen’s blood alcohol level was 0.09, he said. The legal limit to drive in Texas is 0.08.

Breen argued that the apartment complex, marketed to college-age residents, condoned pool parties where alcohol was consumed, yet neglected to plan for associated risks.

But Ray noted that jurors, answering a separate question, also found VanDusen to be 51 percent responsible for negligence in causing his injury. “If a plaintiff is more responsible for causing the accident, the plaintiff receives nothing,” he said. “So we believe there is a conflicting jury finding that we will appeal.”

Ray also will ask District Judge Orlinda Naranjo to dismiss or reduce the award before Naranjo enters a final judgment, which typically takes about a month.

Since the accident, VanDusen has been living in New York, where Medicaid benefits are more generous, but hopes the jury award will let him return to Austin.

“I really enjoy it down here; a lot of my friends still live here, and I hate the cold and snow of New York,” VanDusen said. “This means I’ll have options and better care from doctors and therapists familiar with my type of injury.”

Now 28, VanDusen hopes to continue writing songs by computer and recently purchased a harmonica “so at least I can play an instrument.”

http://www.statesman.com/news/local/paralyzed-musician-gets-6-2-million-in-travis-1209884.html

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