Best Lawyers, the oldest and most respected peer-review publication in the legal profession, has named Randy R. Howry as the “Austin Best Lawyers Litigation – Real Estate Lawyer of the Year” for 2012. This is the first time the publication has made such designations of individual attorneys. Howry is a partner with the firm HowryBreen & Herman LLP in Austin, Texas.

Steven Naifeh, President of Best Lawyers, says, “We continue to believe – as we have believed for more than 25 years – that recognition by one’s peers is the most meaningful form of praise in the legal profession. We would like to congratulate Randy R. Howry on being selected as the ‘Austin Best Lawyers Litigation – Real Estate Lawyer of the Year’ for 2012.”

Best Lawyers compiles its lists of outstanding attorneys by conducting exhaustive peer-review surveys in which thousands of leading lawyers confidentially evaluate their professional peers.

Howry has handled a variety of real estate litigation cases in Travis County and other counties throughout Texas, including ones that combine real estate issues with oil and gas royalties and rights.

In addition to Howry’s selection for the Real Estate specialty in Austin – Lawyer of the Year, Howry, Sean Breen and Tim Herman of HowryBreen & Herman received designations to the national group Best Lawyers 2012.

Karen Reimus slowly pilots an SUV through her Scripps Ranch neighborhood of large Tuscan-looking homes with red tile roofs and meticulously tended lawns. As kids play and adults stroll the streets greeting each other by name, she points out the homes that vaporized eight years ago after the Cedar Fire leapt through the subdivision, leveling more than 300 homes.

“That one burned, that one burned, that one burned, that one didn’t, that one did.” It sounds like a grim version of “duck, duck, goose.”

When Reimus returned for the first time after the fire, a deputy manning a checkpoint warned her of the devastation. “But,” she said, “nothing could prepare me.” Forty-six of 47 homes on her street were gone.

“It looks like a regular neighborhood now,” Reimus said, “but at the time. …” Her voice trails off.

Like many of her neighbors, Reimus and her husband rebuilt. But getting the money from their insurance company wasn’t easy. “We bought this house four months before it burned down,” she said. “I told my agent I want full coverage. This was not cheapinsurance.net. I got the earthquake rider and extended replacement policy, which meant if there was a demand surge that increased rebuilding prices, you’ll still have enough money.”

Yet almost immediately she found herself butting heads with the company. “My husband and I are both lawyers, so it’s hard to imagine two people better positioned to advocate for themselves,” she said. “And let me tell you, it was a nightmare.”

It was a common complaint. Some insurance companies paid fully and promptly. But advocates who worked with Cedar Fire survivors said many did not, fighting policyholders on replacement values and offering appraisals far short of rebuilding costs.

“Almost everyone was underinsured to some degree,” said Valerie Nash, a Vancouver, British Columbia-based consultant who helped communities recover in the aftermath of the fires. In some cases, she added, residents of poorer areas burned by the Cedar Fire were completely uninsured, either because they couldn’t afford premiums, or because their homes had been deemed uninsurable because of their location in areas deemed at high risk of wildfire.

“It was very widespread,” added George Kehrer, who founded Community Assisting Recovery — CARe — several years after losing his home in the 1991 Oakland Hills Fire, primarily to help survivors navigate the insurance maze, and who worked with Cedar Fire survivors. The organization also publishes “Disaster Recovery: A Survivor’s Guide to Insurance.”

He and other advocates counsel survivors to contact nonprofit consumer organizations for advice on how to avoid common pitfalls, such as settling too early for too little money. “We like to say: Your adjuster may be friendly, but he is not your friend,” said Reimus, who after the Cedar Fire went to work for United Policyholders, which educates disaster survivors about insurance and distributes “The Disaster Recovery Handbook.”

“If you have lost your house, you’ve just started a poker game for professionals who play all day long,” added David Kassel, who founded the Cedar Fire Rebuilding Resource Group after losing his home. “And you are a rank amateur and the pot on the table is your house.” He eventually settled with his insurer through arbitration; his house took three full years to rebuild.

The industry insisted that intentional undercoverage and low-balling were not widespread after the 2003 fires. But in 2004, following public meetings at which angry Cedar Fire survivors vented about their coverage to state officials, California legislators passed a homeowner’s bill of rights.

Among other reforms, it extended the amount of time, from one year to two, that insurers had to pay living expenses while policyholders rebuilt their homes during a declared emergency; allowed survivors to rebuild a new home wherever they chose; and prohibited companies from canceling policies while a burned home was being rebuilt.

Texas policyholders already have some comparable protections from the state’s own consumer bill of rights, said Deeia Beck, executive director of the Office of Public Insurance Counsel, a government agency that represents consumers. But she added that some companies do write policies limiting living expense reimbursements to a year and requiring homeowners to rebuild on their burned sites.

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.

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

A Williamson County jury decided this month that three people were negligent in the drinking death of an underage girl: a liquor store employee, the girl’s mother and the 17-year-old herself.

Savannah Skye Smith died of alcohol poisoning on Feb. 10, 2009, according to a lawsuit filed by her mother, Debra Smith, against the employee of the liquor store, James East, and his wife, Terri Bayless East, who owned the store.

The lawsuit accused James East of knowingly selling alcohol to an underage Savannah at Avery Fine Wines and Spirits on Parmer Lane in Austin from July 2008, when the girl was 16, until the day of her death.

The Easts declined to comment on the verdict. Through their lawyer, Jim Goldsmith, they denied the accusations. Debra Smith, reached for comment Friday, said her daughter told her that she got the alcohol from the liquor store’s bathroom, where James East had hidden it. Smith said she had tried to get her daughter to stop drinking, taking her to doctors and to the hospital, though she said she couldn’t find a rehabilitation facility that would accept the insurance that her ex-husband, Savannah’s father, carried for the teen.

“I tried everything I possibly could to save her,” said Smith, who also said she didn’t have any issues with the jury’s verdict.

The jury awarded $646,269 in medical expenses, funeral expenses and damages to Debra Smith. But she is eligible to receive only 35 percent of it, or $226,194.15, because the jury found that she was 40 percent negligent in her daughter’s death and that her daughter was 25 percent negligent. The jury held that James East was 35 percent negligent.

“In Texas, parents are generally immune from the acts of their children,” said Randy Howry, a former president of the Austin Bar Association and an attorney who specializes in personal injury cases.

But “this kind of case doesn’t happen very often, where a minor gets alcohol and dies of alcohol poisoning at home,” said Howry, who was not involved in the case.

Savannah died in the living room of the apartment where she lived with her mother in Cedar Park, said her mother’s lawyer, Lloyd Robles. She had been partying at the apartment with three friends, who thought she was asleep when they left, he said. Her mother came home from work about an hour later, found her and took her to a hospital, where she was pronounced dead a short time later, Robles said.

Savannah had attended Austin Premier High School, a charter school, but was taking online classes at home and had been sober for a few weeks before she died, her mother said.

“She was a loving, gifted, caring child and never met a stranger,” Smith said.

Robles said he expected the jury to find some negligence on Smith’s part, but he didn’t expect the percentage assigned to her to be so large.

“The evidence which most harmed her mother was photos taken by police as part of the crime scene, which basically showed a collection of empty liquor bottles on top of the daughter’s chest of drawers,” said Robles.

He said photos taken in other parts of the girl’s bedroom showed several empty beer bottles and an empty beer carton. Smith said the empty bottles were a collection from a friend’s grandparents’ house and the beer carton and bottles were not in her daughter’s room until the day she died.

Goldsmith said James East never sold any alcohol to Savannah.

“He never provided alcohol on the day she died or any other occasion,” Goldsmith said. The lawyer said evidence was presented at trial that other people might have bought the alcohol for Savannah, including her friends.

Robles disagreed that East had never sold alcohol to Savannah and said four witnesses testified that the girl got alcohol from the store “on a regular basis.”

Another key issue during the trial was 84 calls between Savannah’s cellphone and the liquor store, including one from James East to Savannah on her 16th birthday, Robles said.

Goldsmith didn’t disagree that the calls were made. But he said that many of them were to report that someone had stolen some merchandise from the store and said that some of the calls she made were when the store was closed. She worked at a nearby pizza place and had information to help the store owners, he said. East called Savannah on her birthday because he was returning a call she made the night before about stolen items, Goldsmith said.

“This is a tragic case of a mother who lost her daughter, and I think this kind of case generates some level of sympathy with the mother,” said Goldsmith. “I think it’s also unfortunate that the jury elected to possibly rely on that sympathy to find someone else negligent.”

He said the Easts might appeal the case.

Howry, the former bar association president, said that “folks on juries these days try real hard to do the right thing.”

“Given the evidence that Mom wasn’t creating a safe environment, it’s not surprising that the jury might find some liability against the mom,” he said, “but it’s surprising that they put more negligence on the mom than than they did on the liquor store.”

Two people injured earlier this month when a pair of glass panels fell more than 20 stories into the pool area at the W Austin are suing the hotel and operator Starwood Hotels and Resorts Worldwide.

The suit, filed late yesterday by attorney Sean Breen, alleges the hotel had been warned about potential problems with the glass prior to the June 10 incident. After the panels fell, the two hotel guests claim the W’s response was inadequate, allowing three more to crash down Monday afternoon.

“One of the major concerns of my clients is that the W wasn’t doing what it needed to do,” Breen said. “This is clearly a serious problem.”

Two weeks after they were injured, Susan Davis and Prashanth Magadi are reportedly “still removing glass from their bodies.”

The suit does not seek specific damages, leaving that up to a jury to decide. Davis and Magadi also outline multiple steps in the filing that they believe should be taken to prevent further mishaps at the building, located at 200 Lavaca St. in downtown Austin.

Following Monday’s incident, the hotel and developer Stratus Properties announced they would replace all 1,000 of the balcony panels. Until that work is complete, covered walkways will be installed around the building.

Officials with Stratus and the W were not immediately available to comment on the suit.

A Dallas-area man who Travis County prosecutors say had his $1 million lottery ticket stolen by a convenience store clerk in 2009 has sued the Texas Lottery Commission and others in hopes of recovering all of his winnings.

Lawyers for Willis Willis, a retired Grand Prairie maintenance man, filed the suit in state District Court in Travis County last week against the lottery commission, Gtech Corp, which runs the lottery, and the owner of a convenience store where Willis bought his ticket.

Also sued was Pankaj Joshi, a college student who authorities say fled the country for his native Nepal in 2009, around the time authorities in Austin say they discovered that he took Willis’ winning ticket and cashed it in at lottery headquarters in Austin.

Joshi did not tell Willis he’d hit the jackpot and pocketed the ticket after Willis gave it to him at the counter of Lucky Food Store #2, officials said.

Joshi has been indicted on a felony charge of claiming a lottery ticket by fraud. Austin police and Travis County prosecutors recovered about $395,000 from his bank accounts and a judge declared Willis the rightful owner of that money. Joshi received $750,000 after taxes were withheld.

With his lawsuit, Willis is demanding the rest of the jackpot and other unspecified damages.

Willis’ lawyers have previously asked a judge to allow them to ask lottery officials and others questions under oath to gather information for a possible lawsuit. That request is awaiting a ruling on an appeal filed by lottery officials.

During a short hearing before state District Judge Suzanne Covington last year, Assistant Attorney General Gaston Broyles, who represents the Lottery Commission, said that a prize may not be paid twice, that a lottery ticket is a “bearer instrument” and that lottery officials are not responsible for lost or stolen tickets.

“Mr. Joshi was the bearer of that ticket,” Broyles said.

Willis’ lawyers have argued that it is absurd that lottery officials believe that Joshi is the winner while Austin police, Travis County prosecutors and a criminal court judge have ruled that Willis is the rightful winner.

“It has taken two years too long to pay Mr. Willis the money owed him,” Sean Breen, one of Willis’ lawyers, said in a statement. “We simply want the Texas Lottery or the store to pay him the money that its own agent stole.”

While it offers no examples, Willis’ lawsuit claims that the lottery “has been plagued by theft and corruption from store clerks (and) vendors/agents of the lottery.”

Because they are not required to register with the state, store clerks are not scrutinized when presenting themselves as lottery winners, the suit said.

“While the Texas Lottery touts itself as secure to the public, it is not,” the suit said.

Click here to read the article.

MyFoxAustin – The Texas Supreme Court heard arguments Tuesday regarding paperless electronic voting machines.

Sean Breen and client Willis Willis featured in Dateline NBC’s September 6th, 2010 investigation into lottery issues.

Watch the video on Dateline NBC.