Tyler man sues negligent driver's lawyers for failing to notify driver of pending lawsuit

Michelle Keahey, East Texas Bureau Mar. 20, 2012, 4:00am

MARSHALL - After obtaining a court award in a motor vehicle personal injury lawsuit, a Tyler man has filed a legal malpractice lawsuit against the negligent driver's lawyers, who failed to tell the driver about the pending lawsuit.

James R. Flowers filed suit against James D. Bertsch and Touchstone, Bernays, Johnston, Beall, Smith & Stollenwerck on March 12 in the Eastern District of Texas, Marshall Division.

The lawsuit involves an accident that occurred on Aug. 29, 1999, when Flowers was driving a 1993 Kenworth westbound on Interstate 20 and was rear-ended by William Galaviz, who was driving Mansfield Motors Inc.'s vehicle.

Flowers states that the accident was a result of Galaviz and Mansfield Motor's negligence for failing to keep a prudent and careful lookout, operating a vehicle at an excessive rate of speed and in a careless and reckless manner, for failing to observe the preceding traffic, Flower's bake lights and the traffic conditions, for following too closely and for failing to be alert to an emergency situation.

Flowers claims he suffered shock, permanent injuries, medical expenses, physical pain and suffering, mental pain and suffering, physical disability and impairment of function, impairment of future earning capacity and lost future income, loss of enjoyment of life, property damage, loss of use of vehicle, damage to his credit and aggravation, annoyance and inconvenience associated with the loss of vehicle use and for the prosecution of the claim for compensation.

Flowers filed a lawsuit against Galaviz in federal court in the Eastern District of Texas, in 2001. A default judgment was entered in March 2003.

Flowers states that Galiviz's insurance company failed to notify or make an appearance on behalf of Galaviz and failed to defend him, although the insurance company had taken liability on behalf of Galaviz. Flowers states that these actions constitute legal malpractice by the insurance company's lawyers.

The defendants are accused of breaching their duty to defend Galaviz.

The plaintiff is asking the court for an award of $385,295.00 plus interest, attorney's fees and court costs.

Flowers is represented by New Orleans attorney Richard H. Barker IV.

U.S. District Judge Rodney Gilstrap is assigned to the case.

Case No. 2:12-cv-00135

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