First, if you’ve been involved in any car accident, you need to make sure that you or anyone in your vehicle aren’t injured. If anyone is injured, seek medical treatment immediately.
1. Know the Texas Statute of Limitations for Property Damage
You need to make sure you’re “still in the game” statutorily and that you haven’t lost your rights to receive compensation for your losses under Texas law. Note: the statute of limitations for Texas property damage cases is two years from the date of the accident. In uninsured / underinsured motorist property damage claims against your own insurance company, the statutes of limitation are more complicated, which include breach of contract (four years), bad faith (two years); and violations of the Texas Deceptive Trade Practices Act (two years). However, when these statutes start to run are different in every case. It’s best to call a Texas car accident attorney to avoid losing your rights.
2. Get Your Texas Car Accident Police Report
After you have been involved in a car accident, even a minor one, call 911 and have a police officer write a car crash report (Peace Officer’s Crash Report – CR-3 Form). This is important for several reasons:
- you need to document that the accident occurred;
- you’ll need information from the report to assist you in filing a claim with the insurance company; and
- usually the officer will assign fault by citing the driver responsible for the accident or will provide contributing factors based on their investigation, which will help with determining liability later.
According to Texas Transportation Code Section 550.062, a Texas police officer is required to write a Peace Officer’s Crash Report whenever the accident resulted in injury or death or property damage of $1,000 or more. This report must be filed with the department no later than 10 days after the accident. If the accident doesn’t immediately involve injury or death or property damage that exceeds $1,000, then you should still fill out a Blue Form Crash Report (CR-2 Form), even though it’s not legally required. The CR-2 Driver’s Crash Form is for the driver’s records only and, as of September 1, 2017, is no longer turned in or retained by the Texas Department of Transportation. Drivers involved in a crash not investigated by a peace officer should retain this form for their records and fill them out as soon as possible so not to fail to put any important details that may be forgotten from passage of time.
Find out how to get your crash reports below:
3. If your car isn’t drivable, keep track of where it is being taken and stored. Have it moved quickly to a repair shop of your choice or to the insurance company’s storage facility to avoid accruing fees.
The whereabouts of your car will usually be given to you by the tow truck driver and will also be noted on the police report. However, it’s important to have this information up front so that you can accurately give this information to either your insurance company or the other driver’s insurance company when you file your claim. The insurance company will need to know where the car is stored in order to send an adjuster to estimate the damages and move it to a repair shop. Keep in mind, that under Texas law you have the right to choose which repair shop your vehicle is repaired, as well as the replacement parts that are used. If your vehicle is stored at a storage lot, you will be assessed a daily fee, which can quickly add up. Even if it was the other driver’s fault, it is your duty under Texas law to “mitigate your damages.” This means that you must take reasonable steps to reduce the damages, cost, and to prevent them from getting worse. If you do not mitigate your damages and just let your car sit in the storage lot for an unreasonable amount of time, the insurance company will not be responsible for paying all the storage fees. If the insurance company is still investigating liability, try to have the insurance company move the vehicle to their storage facility to avoid accruing fees. For more information about Texas car accident storage fees, click here.
4. If the accident wasn’t your fault, file a claim with the other driver’s insurance company.
If you haven’t hired a Texas car accident attorney, make sure when you talk to the insurance representative that’s opening your claim, to stick to the facts of the accident and be consistent with what you told the police officer that investigated your accident and wrote your report. The insurance company will later have access to the crash report and will know whether there were inconsistencies in your side of the story you told the police and what you have told them when you filed the claim. Be concise, truthful, consistent, and try not to be emotional. You’ll be giving the insurance representative mostly basic information such as your name, address, date of birth, vehicle information, where your car is being stored, and location and time the accident occurred. They will also ask if you suffered any injuries as a result of the accident. If you feel any pain at this point, it’s best to contact a Texas car accident attorney to get their advice before speaking to the insurance company regarding your injuries. Most people don’t know how to properly approach these questions when asked by the insurance company. The insurance representative will then provide you with a claim number and claim adjuster’s name and phone number or the number of the department that handles property damage claims and/or total losses.
5. If the accident wasn’t your fault or was a hit and run, and the other driver didn’t have car insurance, file an uninsured motorist property damage (UMPD) claim with your own insurance company.
If the other driver was responsible for the accident but didn’t have liability coverage, you can file a claim with your own insurance company to repair or replace your car. However, you need to have purchased uninsured / underinsured motorist coverage for property damage (UMPD). To see if you have this type of coverage, you can usually access your insurance declarations page through your insurance company’s smartphone app, on their website, or by calling them and asking if you have this coverage. According to Texas Insurance Code Section 1952.101, all auto insurance policies must include uninsured or underinsured motorist coverage for bodily injury (UMBD) and for property damage (UMPD), unless any insured named in the policy rejects this coverage in writing. So, if you have rejected this coverage, the insurance company will have sent you a waiver to sign and must keep this waiver in their files to prove that you had, in fact, waived this coverage. If the insurance company can’t produce the signed waiver when requested, the Texas Supreme Court has ruled in Allstate v. Hunt, that uninsured/underinsured motorist coverage will be implied up to the level of the state minimum, which is $30,000 per person and $60,000 per accident in bodily injury coverage and $25,000 in property damage coverage. There is a deductible to use UMPD coverage of $250, which is mandated by Texas law under Texas Insurance Code Section 1952.105. If you do have this coverage and file a claim with your insurance company, it is your insurance company’s burden to determine whether the responsible party had insurance (Texas Insurance Code Section 1952.109). Your insurance company will do their own investigation to find the responsible party’s insurance. So, if they aren’t insured, you’re covered under your UMPD coverage. If they end up finding the responsible party’s insurance, you can file a claim with their insurance company.
Many times, Texas accident victims are concerned about filing a UM claim with their own insurance company since they don’t want their premiums to increase or to be dropped. There are three good reasons that this logic is flawed:
- If you’re paying for the additional premium for uninsured / underinsured coverage and never using it, you’re wasting your money. UM coverage is not required by Texas law. So, why pay for something you’re not required to have and never use it?
- It’s unlikely that your insurance company will raise your premiums, if you have submitted only one not-at-fault claim.
- Your insurance company cannot refuse to renew your policy for any accident or claim that was not your fault, unless you have two or more of these claims or accidents in a one-year period.
6. If the accident was your fault and you choose to repair your car, you can file a claim with your own insurance company.
If you have collision coverage, you can file a claim with your own insurance company using this coverage. However, there will be a deductible, usually $500 to $1,000, depending on the deductible you selected when purchasing your car insurance.
7. Rental car: You can get a rental car either through your own insurance company or through the responsible party’s insurance company.
Depending on where the responsible party’s insurance company is in the liability determination process, you will be entitled to a rental car while your car is being repaired or until they determine whether your car is a total loss and provide you with an offer. Start shopping immediately for a new car, if you’re pretty certain that the damage to your car was significant enough to be determined a total loss. For more information on how do insurance companies decide to total a car in Texas, click here.
Usually, if your car is totaled, you can ask the insurance company to give you 2-3 days extra in your rental after they’ve made an offer on your car. If you’re waiting for the responsible party’s insurance company to perform their liability investigation, you can pay out-of-pocket for a rental, save your receipts, and ask for reimbursement once they’ve determined that their insured was at-fault for the accident. Otherwise you can go through your own insurance company, if you have rental car coverage under your policy. If you are unsure as to whether you have rental car coverage, call your insurance company and ask.
8. You may be entitled to “Loss of Use” money, even if your car was totaled.
For the time that you were without a car and were not provided a rental car, you may be entitled to “loss of use” money. The insurance company will pay you the reasonable rental rate for your wrecked car or a similar sized car. This can be anywhere from $20.00 to $30.00 per day, until they’ve repaired or made an offer on your car in a total loss case. As for this applying to totaled cars, the Texas Supreme Court ruled in J & D Towing, LLC v. American Alternative Insurance Corporation, that the “owner of personal property that has been totally destroyed may recover loss-of-use damages in addition to the fair market value of the property.” This means that you may not only get paid for your totaled car by the responsible party or their insurance company but also receive money for the time you were without it. However, this time is limited. According to J & D Towing, the court also ruled that loss-of-use money “may not be awarded for an unreasonably long period of lost use.” In other words, you have a duty to mitigate damages. Specifically, you may not recover loss-of-use money for a period longer than is reasonably needed to replace your car.
9. You may be entitled to “Diminished Value” money if your car was damaged and repaired.
If your car was damaged by a collision that was not your fault, you may be entitled to the loss of value due to the stigma that a wrecked car has, even if it was repaired perfectly. Not only are there uncertainties as to whether the repairs were done properly, but also whether the car is still safe to drive and whether the car was repaired with parts from the original equipment manufacturer. These uncertainties undoubtedly affect the market value of the repaired car. In order to present a diminished value case to an insurance company, you’ll need to provide proof that there is a difference between the market value before the accident and after the accident. Other factors that improve your chances of winning a diminished value claim, include:
- Repairs to your vehicle totaled at least $1,500
- Your vehicle hasn’t been in any prior accidents or does not have a salvage title
- Your vehicle doesn’t have high mileage
To present a strong case for diminished value in Texas, it’s best if you present the insurance company with a certified diminished value appraisal report from a certified auto appraiser. These reports cost around $500 but may be worth it if you’re diminished value claim exceeds the appraisal report fee amount. Also, if your car is leased, you should contact the lease company to discuss the diminished value claim with them. They may require that you get written permission in order to pursue a diminished value claim for the leased vehicle. How the lease company handles diminished value claims really depends on each lease company. Contact your lease company and ask them how they handle diminished value claims and whether you will be entitled to the diminished value settlement.
10. If your car was totaled and the insurance company won’t pay off your car loan, you may have some options:
- Option 1: GAP Insurance – GAP insurance covers the difference between the actual cash value of your car and the amount of your loan that you still owe for a loan or lease. Many times, when you buy or lease a new car under certain conditions, the bank requires that you hold GAP insurance to protect their interest in the car if it’s totaled. You may have GAP insurance and should call your insurance company or bank who financed your car to see if you have it. If you do, you’ll be covered if your car is ever totaled and you owe more than the actual cash value.
- Option 2: Rolling the negative equity into your new car loan – If you owe more on your car loan than your car is worth, you may be able to roll the negative equity from your totaled car into your new car loan. This will, of course, depend on your credit history and whether you can afford the higher payments. Usually when rolling negative equity into a new car loan, the bank requires that you have GAP insurance.
- Option 3: File a claim under your own collision coverage – You may have a better chance of getting a higher offer from your own insurance company under your collision coverage if the responsible party’s insurance company gave you a low offer on your car. If you choose to go through your own collision coverage and pay the deductible, your insurance company may recover your deductible back from the responsible party’s insurance company
- Option 4: Negotiate – See tip 10 below.
11. Negotiate the offer from the insurance company for your totaled car.
Insurance company’s first offers usually aren’t their best and final offers, even if they tell you it’s not negotiable. Provide them with a list of comparable vehicles (same year, make, and model) in your area, in similar condition with similar options and mileage. You can find these comparable vehicles online on websites such as Kelly Blue Book, Autotrader, or Car Gurus. You can even go to a dealer and get a written dealer estimate of fair market value. Also, if it makes sense, you can get an appraisal report from a certified auto appraiser.
12. When you are ready to settle your property damage claim and have a bodily injury claim open, do not sign anything until you’ve had a Texas car accident attorney review the release, and this includes the property damage settlement check.
There’s a possibility that the release or property damage settlement check contains an “all-inclusive” release clause that releases the liable party and the insurance company from any and all liability, including release from liability on your medical bills, lost wages, pain & suffering, and other damages.
Also, be careful when discussing your claim over the phone with an insurance adjuster. Oral releases given to an auto insurance adjuster in Texas are binding. In the case Windell Gilbert v. Cherish Fitz, the Dallas Court of Appeals held that where a Texas accident victim agreed to a verbal settlement of his medical bills from the accident plus $500, he was bound to that agreement. The moral of this case is whenever bodily injury is involved in a car accident case, consult with a Texas car accident attorney first to ensure that you are protecting your rights.