Were You Involved in an Auto Accident in the Houston Area?
Hiring a Houston car accident lawyer is not only smart, it’s necessary! It’s no secret that Houston highways and roads are some of the most dangerous in the U.S. The Houston Chronicle, using federal highway data, concluded that Houston is the “the most deadly major metro area in the nation for driver, passengers, and people in their path.” A Houston car accident lawyer will handle the insurance claims process and, either through a fair settlement or verdict, and will help you achieve the compensation you deserve.
Should You Hire a Houston Car Accident Lawyer?
If you were injured and the accident wasn’t your fault, the answer to this question is almost always YES! Insurance companies are notorious for employing the “three D’s” scheme: DELAY, DENY, DEFEND. They do their best to delay processing and paying on your claim; they do everything possible to deny your claim; and they defend against your claim all the way to trial and appeal. This scheme, of course, is designed to maximize the insurance company’s profits. Hiring an attorney levels the playing field. The fact is the amount of your compensation from a car accident will, in most cases, be more when you are represented by a car accident attorney than if you were handling your case on your own. In our experience, before a client hires us, the insurance company will always try to do their best to offer a “nuisance” settlement offer as quickly as possible. A “nuisance” settlement offer is basically a nominal amount of money (e.g., $500) for your trouble offered to settle the bodily injury portion of your claim and will sometimes include the insurance company paying for a medical bill or two at a reduced rate. In a “nuisance” offer scenario, insurance adjusters are trained to settle claims for as little as possible and as quickly as possible before the involvement of an attorney.
How Much Do Car Accident Lawyers Charge?
Car accident lawyers work on a contingency fee basis. This means that they only get paid when they’re able to get a settlement from the insurance company for your case or when a jury awards a verdict in your favor. You won’t need to pay the attorney if you lose your case. This is great news for anyone who has been injured in a car accident and doesn’t have the funds to pay a lawyer up front for their services. The typical contingency fee ranges anywhere from 33 1/3% to 40% of the gross settlement before a lawsuit is filed and 40% to 45% of the gross settlement/verdict after a lawsuit is filed. Case expenses such as court filing fees are usually deducted out of the client’s portion of the settlement. The settlement example below will give you an idea on how settlement funds may be distributed in a car accident injury case.
In this example, let’s say the accident happened when Paula Plaintiff, a 20-year-old college student, was rear-ended by Dexter Defendant. The accident totaled Paula’s 2010 Honda Accord and Dexter’s 2018 Ford F-150. Dexter was determined to be 100% at fault for the accident. Paula was rushed to the emergency room by ambulance to the closest emergency room. At the emergency room, three CT scans were taken of her head, back, and pelvis. She was diagnosed with a concussion and whiplash. The pain in her back and neck persisted, so, she sought treatment with a chiropractor for six weeks. Additional medical diagnostics were performed, including an MRI of her neck and back. Moderate sized cervical and lumbar spine herniated discs that caused spinal cord and nerve impingement were found. She was later referred to an orthopedic surgeon for a consultation. The orthopedic surgeon recommended Paula receive two epidural steroid injections in her neck and back to alleviate the numbness, pain, and weakness she had been experiencing since the accident. After she had been released from treatment, Paula’s attorney drafted and sent a demand package to Dexter’s insurance company. After several rounds of negotiations between Paula’s attorney and Dexter’s insurance company, Paula agreed to settle her case for $120,000. After Paula’s health insurance had paid for the emergency room visit, she had $10,000 in outstanding medical bills that still needed to be paid. After all medical bills and case expenses were paid, Paula received a net settlement amount of $69,500.
|Attorney’s Fees (33 1/3%)||$40,000.00|
|Outstanding Medical Bills||$10,000.00|
|Net Settlement to Client||$69,500.00|
How Much is My Car Accident Case Worth?
This is one of the first questions asked by someone injured in a car accident. I can tell you, with absolute certainty, that no Google search query, online forum, legal website, blog, or online “settlement calculator” can answer this for you. Each case has its own unique facts. Insurance companies and juries alike do not use a common formula to calculate the value of each case. It should be noted that insurance companies do not share their settlement data with anyone outside their own organization. Each insurance company may use their own database or bodily injury claims software such as Colossus to streamline the settlement process. Juries, on the other hand, are presented with evidence of damages in trial and are tasked with calculating these figures using their best judgment.
Both insurance companies and juries value cases based on the amount of “damages” that are proven in a case. “Damages” is a term used in the law for the harm or loss that an injured party suffers as a result of an accident. Recognizable damages according to Texas law include:
Medical expenses include those paid out-of-pocket or by your health insurance/Medicaid/Medicaid, and any outstanding medical bills such as an emergency room bill, physical therapy bill, MRI bill, labs bill, or if you paid for pain medication prescriptions out-of-pocket. Not only are past medical expenses part of recognizable damages, but future medical bills can also be included. These may include the cost of future surgery recommended by your treating physician.
Lost wages include the amount of money you lost from taking time off of work dealing with your injuries. This can include sick and vacation time that you took, as well as the time you took off and weren’t paid. Lost wage damages also include future lost earnings that will be lost in the future as a result of the injury.
Physical Pain and Suffering
Past and future physical pain and suffering damages compensates an injured party for the subjective physical pain they’ve endured in the past and will ensue in the future from their injuries. This can include the muscle pain from a muscle strain or pain from a broken or fractured bone.
Mental or Emotional Pain or Anguish
Mental or emotional pain damages compensates an injured party for the psychological injury that has resulted from the physical injury. Anguish damages compensates the injured party similarly for the apprehension that results from an injury and all the uncertainties that may follow, such as the fear of an injury reoccurring or susceptibility to a future health condition.
Loss of Consortium / Loss of Companionship & Society
Loss of consortium compensates the injured party’s spouse or children for the loss of services, companionship, and other values the injured party once contributed to the spouse or family. Loss of consortium can include the loss of household services, support, love, companionship, guidance, society, affection, sexual relations, and solace. Loss of consortium is a “derivative” claim, meaning it piggybacks onto underlying primary injured party claim and belongs solely to the spouse or family member of the injured spouse.
Disfigurement damages compensates the injured party for the lasting physical scars that are left as a result of the injury. This can include scars from the accident itself, such as from abrasions, burns, or cuts, or from surgery performed as a result of the injury.
Physical impairment damages provides compensation to the injured party for no longer engaging in or enjoying activities that he or she was able to do before the injury. Most of the time you’ll need a permanent injury to recover physical impairment damages.
Loss of Enjoyment of Life
Loss of enjoyment of life compensates the injured party for the loss of the ability to engage in certain life activities such as taking part in hobbies, playing with your children, loss of job security, or loss of attending to your domestic and household matters.
Punitive damages are designed to punish the responsible party by paying the injured party money damages, in addition to the above damages (compensatory damages). Drunk driving accidents are a good example of where this type of compensation is given.
The general rule is the greater your damages, the greater the value of your case. A good starting point in evaluating your own case is by adding together all of your “special damages.” “Special damages” are those that are easily quantifiable, such as your medical bills and lost wages. The rest of the calculation is a bit more complex. “General damages” are less easily quantifiable and include pain and suffering and disfigurement. Putting a dollar value on your pain is as difficult as you think it would be. Only with experience can you place a dollar value on a car accident injury case. Attorneys use their valuation skills that they’ve acquired from handling a variety of injury cases from beginning to end, as well as their knowledge of the law, to accurately value a case. Similarly, insurance adjusters use their experience of handling hundreds of claims and utilizing the many tools at their disposal, such as claims software, settlement databases, and jury verdicts to place a value on a case. If your case goes to a jury trial, the jury will use their best judgment to award a fair verdict, taking into account the evidence presented at trial.
Factors Affecting Your Case Value
With all of this in mind, there are factors that attorneys, insurance companies, and juries may use to evaluate a case. These factors include:
- Medical treatment: Having consistent, reasonable, and necessary medical treatment in most cases will help increase the value of your case. Generally, the more medical treatment, the more your case will be worth. For example, cases where there is surgery are worth more than cases where there is only chiropractic treatment.
- Severity of injury: In most cases, the more severe your injury, the more valuable your case is. Cases where there are broken bones are worth more than cases where there are only soft tissue injuries (e.g., whiplash).
- Comparative negligence: Texas follows the Modified Comparative Negligence rule, which means that if you are more than 50% at fault in an accident, you are completely barred from recovery. If you’re partially to blame, 50% or less, for an accident, the amount of damages for which you can recover are reduced by the proportion of your fault. So, if you’re 25% at fault, you can only recover 75% of your total damages.
- Preexisting injuries: If you have a preexisting injury or a health condition that was aggravated by the accident, you may recover for the worsening of your condition. However, having a preexisting injury or a chronic health condition can lower the value of your case due to the fact that it may be difficult to differentiate between the preexisting condition and aggravation of that condition.
- Insurance policy limits: The Texas minimum limits for liability insurance for bodily injury are $30,000 per person and $60,000 per accident; and $25,000 for property damage. So, if you were hit by a person with minimum policy limits, that may be the maximum you can recover, assuming you do not carry any underinsured coverage on your own policy. In addition, if the driver who caused the accident had no insurance and you do not have uninsured motorist coverage on your own insurance policy, you may have a difficult time getting anything for your case. You can always sue the responsible party personally, but they may be “judgment proof” due to not having any non-exempt assets which can be seized. Having an attorney investigate all liable parties is the best advice in these cases.
- Property damage: The amount of damage to your car will usually affect the value of your injury case. If you have very little damage to your car, you may have a difficult time proving that the accident caused your injuries. Insurance companies have a name for these types of cases—”M.I.S.T.,” which means Minimum Impact Soft Tissue injury. Where there are only minor scrapes or minimal damage to your car and you’re claiming only a soft tissue injury, you can be sure that if you’re accident is categorized as a M.I.S.T. case, the insurance company will offer little, if any, to settle your case.
- Venue: “Venue” means the county in which you may file your lawsuit, and this can heavily affect the value of your case. Under Texas Civil Practice and Remedies Code Section 15.002, in most cases, you may file a lawsuit either in the county in which the accident occurred or the county in which the defendant resided at the time of the accident. Some counties are more favorable to plaintiffs and some are more favorable to defendants. Jury verdicts are larger in these plaintiff-friendly counties and this has an effect on settlement values. For example, the counties in the Rio Grande Valley are very plaintiff-friendly and the average case value is much higher than in areas such as Montgomery county. Insurance companies know this, and they factor venue into their settlement offers.
- Prior claims: Insurance companies utilized a shared index of prior claims history and you can be sure that they will perform a thorough search of this index to see if you’re a serial claimant or have had a prior claim before or a claim after your current claim that may have had an effect on the injuries you’re claiming against them. Prior and subsequent claims can negatively affect your case, especially if the injuries were to a similar body part. If fraud is suspected, serial claimants may have their claims placed in the “Special Investigative Unit.”
- Insurance company: Just as with any type of product or service, there is a wide range of quality when it comes to car insurance companies. There are insurance companies that serve all parts of the market for car insurance and the old adage “you get what you pay for,” certainly applies here. Budget carriers usually only write policies for minimum liability insurance for those that can’t afford “Cadillac” coverage. They handle their claims with the same budget mentality and are notorious for low-ball offers. Many times, you’ll need to immediately file a lawsuit when dealing with these types of insurance companies.
- Health insurance / Medicaid / Medicare: Texas law has evolved on how health insurance, Medicaid, and Medicare adjustments and payments on medical bills affect your injury case. Texas Civil Practice and Remedies Code Section 41.015 and the Texas Supreme Court cases Haygood v. DeEscabedo and Daughters of Charity Health Serv. of Waco v. Linnstaedter, addressed where a collateral source, such as health insurance paid a reduced amount for medical bills for an injured party and how that will affect the injured party’s case value. According to Haygood, recovery of medical bills paid by these sources, is limited to the amount that is actually paid or incurred by or on behalf of the injured party. In other words, if your health insurance, Medicaid, or Medicare pays a reduced amount for your medical bills, the amount of your claimed damages can be reduced.
- Plaintiff’s profile: How you’ll present before a jury will affect the value of your case. Employment status, job title/profession, physical appearance, driving history, criminal history, marital status, gender, age, and preexisting medical condition/injuries will all factor into how the jury and how the insurance will value your case.
- Defendant’s profile: Similar to the plaintiff’s profile, how the defendant presents before a jury will affect the value of your case. In addition, certain defendants already are negatively viewed by a jury, such as corporate defendants.
- Aggravating factors: Aggravating factors include any behavior from the defendant that would provide you with the basis for punitive damages. This includes drunk driving accidents or other cases where the defendant acted with gross negligence, such as excessive speeding in a school zone. Punitive damages are intended to punish the defendant and are an additional form of compensation for an injured party.
For a more thorough discussion on typical car accident settlements, click here.
How Much Can I Get for Lost Wages?
Before we can answer this question, we need to determine exactly what is included under “lost wages.” The court in Strauss v. Continental Airlines, Inc., 67 S.W.3d 428, 435 (Tex.App.-Houston [14th Dist.] 2002, no pet.), distinguished between “past lost earnings” and “loss of earning capacity,” both of which are under the umbrella of lost wages. In the court’s analysis, “past lost wages are the actual loss of income due to an inability to perform a specific job…” On the other hand, the court explained, loss of earning capacity is not based on the actual earnings lost, but rather on the loss of capacity to earn money. Past lost earnings are much easier to calculate than loss of earning capacity, since with loss of earning capacity we are forecasting what the future will bring as a result of the injury. You can prove your past lost earnings with paystubs, tax returns, bank deposits, or some other hard evidence that can substantiate the monetary loss. Proving lost earning capacity is a bit more complex. You’ll need an expert, such as a vocational economist, to estimate your future earning potential based on your disability, occupation, skill level and other factors. In addition, you will need to prove that your injuries are long-term or permanent to recover lost earning capacity damages.
To calculate your past lost earnings, add up the total amount of hours you missed from work as a result of the injuries. This can include down-time where you experienced too much pain to work and time you took to receive medical treatment, including commuting. Include both the time where you were unpaid and the time where you were paid but used your sick or vacation time. Next, multiply the total hours you missed by your hourly wage. If you were paid a reduced wage as a result of being put on light-duty, include the difference in pay, as well. You can also include any bonuses, commission, or tips that you may have received. You’ll need to substantiate the reason for your missed time at work with something from your doctor ordering you to take time off. If you have your own business or are self-employed, you can also claim past lost earnings. In this case, you can provide tax returns, bank statements, or other financial statements that can show that your income has declined since the accident.
Lost Past Earnings example:
Paula Plaintiff works as a salesperson at the local mall. She makes $15.00 an hour and receives 5% commission for her total monthly sales. She typically works 40 hours per week. Paula averages about $10,000 per month in sales, on which her commission is based. Paula was hurt in a recent car accident caused by Dexter Defendant. Her doctor ordered that she take off two weeks from work to heal. Based on these facts, Paul missed 80 hours of work, or lost $1,200 ($15.00 x 80) in hourly wages. She lost $250 in commission (5% x $10,000 x .5). Her total lost past earnings are $1,450.
How Much Can I Get for Pain and Suffering?
This question is extremely common for most car accident injury victims. Actually, I’d say it’s as common as the question of what the value of a particular car accident injury case is worth. Similar to the answer to the overall injury case value question, the pain and suffering calculation widely varies. According to the court in Green v. Meadows, 527 S.W.2d 496 (Tex. Civ. App.—Houston [1st Dist.] 1975, writ ref’d n.r.e.), the amount of damages necessary to compensate for pain cannot be determined by a set formula. The court in Hernandez v. Baucum, 344 S.W.2d 498, 500 (Tex. Civ. App. 1961), ruled that damages for physical pain are left to the sound discretion of the jury based upon their common knowledge and sense of justice. Keep in mind that a jury may award zero damages when the pain is almost entirely subjective, based on the plaintiff’s personal reports of pain to doctors, supervisors and family members. That’s why it’s important to have additional evidence of pain, which will be discussed below.
Two Common Methods for Calculating Pain & Suffering
Throughout your search online you will most likely find two common ways pain and suffering may be calculated: the “Multiplier” and the “Per Diem” methods.
The Multiplier Method calculates pain and suffering by multiplying the injured party’s total medical bills and lost wages, also known as “Special Damages,” by some multiplier, such as 1.5 – 5. With 1.5 being the least minor injury and 5 being the most severe injury. This figure is then added to the Special Damages total. For example, if Paula Plaintiff has $5,000 in medical bills, $1,000 in lost wages, and she received minor sprains and strains in the car accident that was caused by Dexter Defendant, we may assign a 1.5 times Special Damages as her pain and suffering multiplier, or $9,000 ($6,000 x 1.5). So, using the Multiplier Method, Paula’s pain and suffering would equal $9,000 and her total case value would be $15,000.
Per Diem Method
The Per Diem method is another method used to calculate pain and suffering in a car accident injury settlement. The number of months, days, or hours are multiplied by a certain dollar figure that is either equal to the amount of pay the injured party receives in their job for that specific time period or some other arbitrary number. For example, if Paula Plaintiff suffered pain for 200 days from the accident and made $200 per day as a construction worker, the pain and suffering calculation would equal $40,000. The idea behind using a daily salary rate calculation as the daily rate of pain and suffering is that it could be thought that the pain associated with an injury is comparable to the effort of working a job. Although the Texas court in Hernandez v. Baucum, 344 S.W.2d 498, 500 (Tex. Civ. App. 1961) ruled that it was a “fair argument and a rational approach for pain the way it was endured, month by month, and year by year,” in proposing a pain and suffering calculation to the jury at trial, it is not an accurate estimate of what the value of pain and suffering will be assigned in a car accident settlement.
The large misconception about these two methods is that insurance companies and juries actually use them to calculate pain and suffering. Simple answer: they don’t.
Although insurance companies in the past may have employed some sort of multiplier to calculate a rough estimate of an appropriate settlement offer in cases involving soft tissue injuries (e.g., whiplash), insurance companies now use settlement software such as Colossus to arrive at an appropriate settlement range, based on prior settlements, localized medical charges, and other claim characteristics.
If a case goes to a jury trial, juries are instructed to assign a sum of money that would fairly and reasonably compensate the plaintiff for the physical pain and mental anguish sustained in the past and future. Juries use their best judgment based on the evidence presented to them throughout the trial.
How Do I Maximize My Pain & Suffering Compensation?
The bottom line is, generally, the more severe your injuries, the greater pain and suffering compensation you can get. However, it’s not as simple as you or your attorney telling the insurance company how much pain you are in. You need more proof of pain and suffering than that. Of course, your testimony is relevant, but you’ll need more evidence to maximize your pain and suffering compensation. Your doctors’ and any other treating healthcare providers’ notes and testimony are a great way to substantiate your pain and suffering. Make sure you tell your doctor everything about your pain. Be as specific as possible. He/she will document this in his/her notes. In addition, any objective evidence of your pain, such as MRI/x-ray film, photographs of your injury/scars, orthopedic devices, or surgical hardware (e.g., screws, plates, pins), will provide the insurance company with what they need to increase the pain and suffering element of the settlement offer. Statements written by your supervisor, coworkers, family members, and neighbors detailing your struggles after the accident will provide further proof of your deteriorated condition.
Actual Car Accident Jury Verdicts and Settlements
For illustration purposes, below are a handful of real Texas car accident injury jury verdicts and settlements. Some of them will indicate how much the jury or insurance company allocated as pain and suffering compensation.
Sparks v. Ogwuegeu (Dallas County)
- Facts: Plaintiff, John Sparks, was rear-ended by Victoria Ogwuegbu in a sedan. The impact pushed Mr. Sparks into the vehicle in front of him.
- Injury: Lower back sprain and strain
- Medical Treatment: Chiropractic treatment, physical therapy, cervical/lumbar MRIs
Medical Bills: $10,691.99
- Insurance Company: Progressive Insurance
- Past Medical Expenses: $10,692
- Past Physical Impairment: $4,000
- Past Lost Earning Capacity: $285
- Past Physical Pain and Mental Anguish: $6,000
- Total Verdict: $20,976.99
C D C v. Stewart (Dallas County)
- Facts: Plaintiff, Charnelle Clark, driving in the right lane of Royal Lane in Dallas, struck the right side of an SUV driven by Bethany Stewart, who was crossing the roadway to reach a parking lot on the side of the roadway.
- Injury: Concussion, strains and sprains of her cervical and lumbar regions, and injury to her right ankle.
- Medical Treatment: Emergency room, chiropractic treatment, physical therapy
- Medical Bills: Unknown
- Insurance Company: Farmers Insurance
- Past Physical Pain: $2,500
- Past Mental Anguish: $5,000
- Total Verdict: $7500; reduced to $4,500 due to comparative negligence
Nie v. Uwamwiza (Harris County)
- Facts: Plaintiff, Wenhan Nie, was sideswiped by a vehicle driven by Gretta Uwamwiza.
- Injury: Herniated discs, sprains and strains of thoracic region and left shoulder
- Medical Treatment: Chiropractic treatment, physical therapy, and epidural steroid injection
- Medical Bills: $25,352
- Insurance Company: State Farm Insurance
- Past Medical Expenses: $25,352
- Past Physical Pain and Mental Anguish: $10,000
- Total Verdict: $35,352
Araujo v. Pennington (Harris County)
- Facts: Plaintiff, Lorena Araujo, collided with Robert Pennington when he made a left turn in front of Ms. Araujo.
- Injury: Disc herniation, nerve impingement, radicular pain
- Medical Treatment: Emergency room, chiropractic treatment, physical therapy, MRI, and epidural steroid injection
- Medical Bills: $23,000
- Insurance Company: Allstate Insurance
- Total Settlement: $65,000
Husk v. Ibe (Harris County)
- Facts: Plaintiff, John Husk, was rear-ended when he was stopped at red light by Margaret Ibe.
- Injury: Posterior scapular shoulder pain
- Medical Treatment: Primary care physician, physical therapy, cortisone injection (shoulder), shoulder surgery
- Medical Bills: Unknown
- Insurance Company: Allstate Insurance
- Total Settlement: $100,000
Maredia v. Reyes (Harris County)
- Facts: Plaintiff, Shoukat Maredia, while traveling in the same direction, adjacent to Maredia, was struck by Christina Reyes, as she abruptly changed lanes, striking the rear driver side portion of his vehicle.
- Injury: Back and neck pain
- Medical Treatment: Chiropractic treatment and epidural steroid injection (lumbar)
- Medical Bills: Unknown
- Insurance Company: Endeavor General Insurance
- Total Settlement: $25,000
When Should I Hire an Attorney for a Car Accident?
Usually, if there are no injuries and the damage to your car is minimal, you may be able to handle your case without the help of a car accident lawyer. However, even in these situations, initially, you may not think you are injured but later symptoms of an injury begin to surface. It’s always best to play it safe with your health and seek medical attention immediately. The next step is to call an experienced car accident lawyer for a free consultation. If you are injured, you should absolutely seek the advice of an attorney. If your accident concerns any of the following, you should think about hiring a lawyer as soon as possible:
Liability is in Dispute
Many times, determining the party or parties at fault in an accident aren’t so straightforward. The insurance company has a duty to investigate liability when their insured is accused of being at fault for the accident. The investigation may include interviewing their insured, interviewing the other parties involved in the accident, and other witnesses to the accident, as well as analyzing the police report, and reviewing the property damage for clues. Intersection accidents where there is controversy surrounding who failed to yield the right of way is a classic example of how liability can get murky, especially when there aren’t any independent witnesses of the accident. The insurance company may deny the claim altogether or assign a percentage of fault that places the innocent party in a position where they may not be able to recover 100% of their damages. This is when hiring an attorney is crucial.
Commercial Vehicle Accidents
When accidents involving commercial vehicles, such as 18-wheelers, buses, trucks, or vans are involved, devastating injuries or deaths can be quite common. Preservation of evidence techniques and litigation are almost always required and demand the legal expertise of an experienced commercial vehicle accident lawyer. Handling these cases on your own is highly inadvisable.
Complex Accident Facts
The countless possibilities of how an accident can occur are as vast as you can imagine. Several car pileups, chain reaction rear-end accidents, and single-vehicle accidents involving a phantom vehicle are just some of the examples of these types of complex accidents. The complexities of many accidents require the expertise of a seasoned car accident lawyer to evaluate liability and the legal rights of all parties involved.
Insurance Company Denied Your Claim
One of the most common of the “three D’s” strategies employed by insurance companies—Denials—are used against car crash victims to limit the number of paid claims. A Denial is a reason to immediately hire a car accident lawyer. The insurance company will usually send a letter highlighting the reason(s) for the denial. There are a variety of reasons that an insurance company will deny a claim. Some of the most common are:
- Injured party was 51% or more at fault for the accident (Texas Modified Comparative Negligence applies)
- “Word against word” where neither party can present objective evidence of the other’s fault
- Police cited neither party or the wrong party for the accident
- There was no mechanism for injury (e.g., nominal property damage)
- Minor impact involving soft tissue injuries only (a.k.a. M.I.S.T.)
- At-fault driver was an excluded driver on the policy
- Policy lapsed, expired, or was cancelled
- At-fault driver was not covered due to a Rideshare policy exclusion
- Liable party was driving a stolen vehicle and the “permissive use” doctrine applies
- Suspected fraud
Insurance Company Gave You a Low-Ball Offer
If you decided to handle your car accident injury claim on your own and have been receiving low-ball offers from the insurance company, the next step is to call a car accident lawyer and have them take over the negotiations for you. Insurance adjusters know when they are dealing with an inexperienced injured party, they can take advantage of the emotional gravity of the situation and easily sway them into agreeing to an unreasonable settlement amount. They’ll usually try to settle for a nominal cash amount and sometimes agree to pay for some of your past medical bills.
You Were the Victim of a Hit-and-Run
If you were involved in a hit-and-run accident and you were not able to get any or only minor details of the at-fault party before they fled the scene, hiring a lawyer may be necessary to be properly compensated for the damage done to your car, any injuries you have suffered, and any other damages you may have.
The At-Fault Party Has No Insurance
Just like being the victim of a hit-and-run accident, being hit by a person with no insurance requires the expertise of a car accident lawyer. An attorney will perform a thorough investigation, searching for any available insurance policies or responsible parties from which compensation can be sought.
Government Entity At-Fault
When a government entity may be to blame for an accident such as the federal, state, or local government, there are many complexities involved that only a car accident attorney should handle. Details such as time limitations in which you can bring a claim and other Texas Tort Claims Act provisions can create a precarious situation for the inexperienced injured party. If you’ve been injured in an accident that was caused by a government operated vehicle or poorly maintained public road conditions (e.g., potholes, cracks, etc.) or missing/malfunctioning road traffic warning signs and signals, your best option is to call an experienced car accident lawyer.
Crash Caused by Defective Vehicles
There are instances where injuries are the result of car manufacturer defects, such as airbag defects, defective tires, a defective seat belt restraint system, defective brakes, and other vehicle defects. When an injury occurs that is the result of a defective vehicle component, the only option is to have a lawyer evaluate your case. The details involved in these types of accidents are far too complex to handle your own. A team of experts must be properly assembled to investigate whether a defective component existed, determine liable parties, evaluate causation, and calculate the legally recognizable damages involved.
What to Do After a Car Accident
Whether you’ve been injured in a car accident or not, it’s important to take the necessary steps to protect your rights.
Even if you think the damage is minor or don’t immediately feel like you’ve been injured, it’s always a good idea to seek the advice of a Houston car accident lawyer. If you end up seeking medical treatment for an injury that surfaces later on or the damage to your vehicle ends up being more than you thought, you want to make sure you can document the accident for insurance claim purposes.
1. Seek Medical Attention Immediately
After you’ve been involved in an accident, seek medical attention immediately. Call 911 and wait for the police and other first responders to arrive. Your health should be your number one priority at this point. If the fire department or ambulance arrives, it might be the best thing for you to go. Don’t be cheap and avoid going to the emergency room if you feel like you’ve been injured. Remember, even a minor impact can create substantial injuries. To rule out any life-threatening conditions such as internal bleeding, broken bones or traumatic brain injuries, it may be smart to go to the emergency room even if you don’t think your injuries are serious.
If you decide to seek treatment at the emergency room, make sure you’re as thorough as possible in describing any of your symptoms to the emergency room personnel. If the doctor doesn’t know your symptoms, they won’t be able to properly diagnose and treat you and these complaints will not appear in your emergency room medical records, which can later hurt your case down the road. Also, always listen to the doctor’s orders. If they recommend that you follow up with your primary care doctor or another healthcare provider, you should always do so.
If you don’t immediately seek medical attention and you are injured, seek treatment as soon as possible.
2. Know the “Rules of the Road” – What are your Duties under Texas law?
After assessing your overall health and safety, you should know the duties under Texas law after you’ve been involved in a motor vehicle accident. Title 7, Subtitle C, Chapter 550 of the Texas Transportation Code (“Rules of the Road”), which applies to accidents on most roads and highways, other than some residential property parking areas or garages/parking lots.
When an accident involves personal injury or death, the parties involved are required to immediately:
- stop their vehicle at the scene of the accident or as close to the scene as possible;
- return to the scene of the accident if the vehicle is not stopped at the scene of the accident;
- determine whether a person is involved in the accident, and if a person is involved in the accident, whether that person requires aid; and
- remain at the scene of the accident until the operator complies with the requirements of the duty to give information and render aid.
- This includes giving the operator’s name and address, the registration number of the vehicle the operator was driving, and the name of the operator’s motor vehicle liability insurance to any person injured or the operator or occupant of or person attending a vehicle involved in the collision;
- if requested and available, show the operator’s driver’s license to any person injured or operator or occupant or person attending a vehicle involved in the collision; and
- provide any person injured in the accident reasonable assistance, including transporting or making arrangements for transporting the person to a physician or hospital for medical treatment if it is apparent that treatment is necessary, or if the injured person requests the transportation. If there are injuries or death of a person or damage to a vehicle to the extent that it cannot be normally and safely driven the duty of the operators of the vehicle involved to immediately alert the police.
Failure to stop or comply with these rules can result in a 2nd degree felony for accidents involving death of a person, 3rd degree felony for accidents involving seriously bodily injury, or up to five years imprisonment in the Texas Department of Criminal Justice or up to one year confinement in the county jail do so can result in jail time, a fine of up to $5,000, or both.
When an accident only involves only vehicle damage, the parties involved are required to:
- immediately stop the vehicle at the scene of the accident or as close as possible to the scene of the accident without obstructing traffic more than is necessary;
- immediately return to the scene of the accident if the vehicle is not stopped at the scene of the accident; and
- remain at the scene of the accident until the operator complies with the requirements to give information and render aid.
If an accident occurs on a main lane, ramp, shoulder, median, or adjacent area of a freeway in a metropolitan area and each vehicle involved can be normally and safely driven, each operator shall move the operator’s vehicle as soon as possible to a designated accident investigation site, if available, a location on the frontage road, the nearest suitable cross street, or other suitable location to give information and render aid, and minimize interference with freeway traffic. Failure to comply with this provision can result in a Class C misdemeanor.
Failure to comply with this provision can result in a Class C misdemeanor, if the damage to all vehicles is less than $200; or a Class B misdemeanor, if the damage to all vehicles is $200 or more.
3. Have a Police Officer Fill Out a Crash Report
Make sure when the police arrive, have them fill out a crash report. This is an important piece in dealing with your accident claim. More information about crash reports is below.
What is a Texas Peace Officer’s Crash Report (CR-3 Form)?
A Texas Peace Officer’s Crash Report is a written summary of a motor vehicle crash. It identifies the time, date, location, the parties involved, the location, identifies witnesses, facts of what happened and may state who was at fault for the accident or at least assumptions based on the officer’s opinion.
It is required that a police officer investigates a vehicle accident and write a Peace Officer’s Crash Report if the accident resulted in injury to or death of a person or if damage to the property of any one person is $1,000 or more. This report must be filed with the department no later than 10 days after the accident. You can purchase most Texas Crash Reports online here.
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. You can download the CR-2 Form here.
Important: if you’re immediately taken to the emergency room after an accident without giving the officer your statement, it’s in your best interest that you call an attorney as soon as you can. Often times when only one party gives their statement, the officer may side with that party if there are no other witnesses or other evidence. This can damage your case. You’ll need an attorney to contact the officer and discuss the facts with him or her to clarify who was at fault.
4. Gather Evidence
Take as many pictures as you can of the scene. We now have the best tool to document every important event in our lives—the smartphone. Most of us have an iPhone or some other smartphone that has a high-resolution camera. Use it. Take pictures of the road, your car, the other driver’s car and any injuries that you may see after, even minor ones, such as bruises, cuts, and scratches. Also, take pictures of the other party’s driver’s license, license plate, insurance card, and registration, as well as the surrounding area buildings, traffic signals/signs (speed limit signs), lighting, road conditions (e.g., skid-marks, potholes, debris, rain, ice, etc.), security cameras, and traffic light cameras. Document witnesses that may have witnessed the accident and make sure the police interviews them and gets their contact information, if they have not done so. If the police do not get a statement from any witnesses, make sure you or your attorney interviews them as quickly as possible. If the insurance company gets a statement from them first, there’s a possibility that their statement of the facts may be influenced by the interviewer (e.g., insurance adjuster).
Also, make sure you document any other damage to property besides your car that resulted from the accident, such as damage to your cell phone or other personal property within the passenger compartment or trunk. If you replace these items with your own money, save your receipts in order to submit them to the insurance company for reimbursement. Also, try to document how the accident happened by writing what happened in your phone’s notes. Note whether the other driver may have been speeding, texting while driving, was distracted or may have been drunk or high. Make sure to document whether the accident happened in a construction zone or school zone. This will be a good reference in staying consistent when telling your side of the story to the police, your attorney, or the insurance company.
5. Limit Your Conversation with the Other Party
Limit your conversation with the other driver, drivers, or parties just to checking on their physical well-being. You can ask them if they are OK. Do not accept fault or place blame on the other party or get emotional or hostile. Remain calm and let the police handle interviewing the parties involved. There will be time to give your side of the story.
6. Keep Track of Your Damaged Vehicle
If your vehicle was disabled as a result of the accident, make sure you know exactly where your vehicle is being stored. The towing company will usually give you a card that has this information. If you were taken to the emergency room by ambulance immediately after the accident and don’t know where your case was towed, call the police department that arrived on the scene of the accident. Find out more about towing and storage here. This information will also be in the crash report. You can download your crash report online here or find out how to get your crash reports below:
7. Open a Claim with the Insurance Company
Information that You’ll Need to Open a Claim
First of all, it is highly recommended that you contact a lawyer before speaking to any insurance company, especially if you are injured. But, if you want to risk it alone, keep reading. You should know that most insurance companies bifurcate auto claims into two distinct sub-claims for internal processing purposes: property damage (vehicle damage) and bodily injury. Before you call to open a claim, you should have as much of the information in front of you as possible. Obtain and review your crash report, review your notes, pictures, and any other evidence you gathered after the accident. You want to be well prepared to answer questions as consistently as possible. Most information that you’ll need with be on the crash report. When setting up the claim, you’ll call the auto claims number and a claims representative will answer. They are usually open 24 hours, so, you can open a claim any hour of the day. The claims representative will ask you general biographical information of the parties involved, including names, addresses, dates of birth, vehicle information, vehicle identification numbers, driver’s licenses and plate numbers, as well as the date, time, and location of the accident. In regard to the property damage, they will also ask you where the vehicles are located (i.e., storage lot) and to describe the damage that was done. Most importantly, they will also ask you how the accident happened. Remember that they will be looking for any indication of fault. So, be well-prepared, concise, and brief. Next, they will ask you if anyone was injured. Be very careful how you answer them. To illustrate, let’s assume the accident just happened one hour ago, your adrenaline is still pumping, and you don’t feel any injuries at all. You may be tempted to say you’re not injured and feel fine. If you haven’t contacted a lawyer yet, you should defer to answering any questions regarding injuries to after you’ve had an opportunity to calmly assess your condition. If you haven’t seen a doctor yet, you don’t know if you’re injured. You may wake up in the morning feeling stiff and sore. Don’t chance it.
Once the claim is set up, they will assign a claim number and, in most cases, assign a claims adjuster immediately. Write down all this information in your notes. You’ll need this information when communicating with the insurance company. Keep in mind that when you call the insurance company, they record their conversations. So, be careful what you say whenever you talk to them. For your convenience, we have provided the ten largest insurance companies claims department contact information below. If your accident happened in the Houston-area, it’s likely that these are the offices that will be handling them:
|State Farm Claims:||Geico Claims:|
|P.O. Box 106171||P.O. Box 509105|
|Atlanta, GA 30348||San Diego, CA 92150|
|P: 844-292-8615||P: 800-207-7847|
|F: 855-820-6318||F: 214-442-5164|
|Allstate Claims:||Progressive Claims:|
|P.O. Box 660636||17950 Preston Road, #400|
|Dallas, TX 75266||Dallas, TX 75252|
|P: 800-255-7828||P: 800-776-4737|
|F: 866-447-4293||F: 713-465-1504|
|Liberty Mutual (Safeco) Claims:||USAA Claims:|
|P.O. Box 515097||P.O. Box 5000|
|Los Angeles, CA 90051||Daphne, AL 36526|
|P: 800-225-2467||P: 800-531-8669|
|F: 603-334-8181||F: 800-531-8877|
|Farmers Claims:||American Family Claims:|
|P.O. Box 268994||6000 American Parkway|
|Oklahoma City, OK 73126||Madison, WI 53783|
|P: 800-435-7764||P: 800-692-6326|
|F: 877-217-1389||F: 866-912-5328|
|Nationwide Claims:||Travelers Claims:|
|P.O. Box 182068||P.O. Box 650293|
|Columbus, OH 43218||Dallas, TX 75265|
|P: 800-421-3535||P: 800-235-3610|
|F: 888-669-7698||F: 877-749-0075|
Opening a Claim with Your Own Insurance Company
It’s at this stage that having an attorney may be crucial. Communicating with the other driver’s insurance company or your own, can quickly turn disastrous. If you open a personal injury protection (PIP) or uninsured / underinsured (UM/UIM) claim with your own insurance company, keep in mind that your relationship immediately becomes adversarial. You may think that because you’ve been a good customer for several years by paying your premium on time and not filing any claims that they are on your side when you need them. Well, insurance companies are for-profit businesses first and they will do their best to delay, deny, and reduce the amount of claims paid out to maximize their profits. It’s nothing personal, just business. It is highly recommended that you contact a lawyer prior to speaking to your own insurance company. If you choose to go it alone, be extremely cautious when communicating with your own insurance company. They may use your words against you to deny or delay your claim. In most UM/UIM claims, they will require a recorded statement from you. There is usually a provision in your policy that mandates a recorded statement be taken and is required when filing an UM/UIM claim. It is always suggested that you lawyer up prior to giving any statements. If you want to handle the claim yourself, be extremely prepared and review the suggestions above.
Opening a Claim with the Other Party’s Insurance Company
When the other party’s insurance company asks for a recorded or “off the record” statement, NEVER give it to them. It is almost never required that you give a statement to the other party’s insurance company. No matter what the insurance company tells you, do not give them a statement. No matter what they tell you, they will make their liability determination without your statement by interviewing their insured, any witnesses, reviewing the crash report, investigating the scene of the accident and any other evidence.
If you did give the insurance company a statement, not all is lost. If you told them you felt fine and now are feeling like you are injured, it’s not too late to claim an injury. There are several reasons why you may have told them you weren’t injured:
- Latent Injury: Certain injuries have a way of surfacing hours or days after a car accident. Particularly, sprains and strains of the muscles, tendons, and ligaments (i.e., soft tissue injuries). Initially, after the accident, you may not feel any different due to the body’s “fight or flight” response to trauma but may wake up the next morning in pain.
- Not Seriously Injured: When the insurance may have asked you if you were injured, you assumed they meant a serious injury. Many people have a misunderstanding when they are asked if they are injured after a car accident. They may think by “injured” the insurance company means, are you bleeding profusely, have a broken bone, or severe head injury. Injuries come in all levels of severity. Some are life-threatening, like a traumatic brain injury. Some are moderate, like a fractured rib. Some are minor, like a sprained muscle. However, all require medical treatment.
- Financial Reasons: You may feel that since you didn’t seek immediate medical attention due to economic reasons, the insurance company won’t believe you were injured. The fact is people may feel apprehensive about seeking medical treatment even if they feel injured because they do not have health insurance or any money to pay for medical bills. The bottom line is if you feel injured either before or after speaking with the insurance company, it’s not too late to seek medical treatment. Your health always comes first.
- Aggravation of a Preexisting Injury: You may think it’ll be too difficult to distinguish between the existing injury and the aggravation of your preexisting injury. Keep in mind if your condition was made worse by the accident, the responsible party is liable for your damages (e.g., medical bills).
8. Get Consistent Medical Treatment
If you were injured, it’s very important to get consistent medical treatment. There are two main reasons why you want consistent medical treatment: number one, your health. Inconsistent medical treatment will only delay the healing process. Ignoring your health only leads to even further medical problems. Number two, it helps your case. Gaps in treatment will only hurt your injury case and lower your potential settlement amount. When insurance companies see that you haven’t been consistent with your medical treatment, they may think you are not as injured as you claim. Logically, if someone is in pain, they will do anything possible to feel better. Ignoring doctor’s orders and missing appointments shows that you may be exaggerating your injuries. Of course, no one likes going to the doctor, but without consistent treatment you’re setting your case back.
Remember to keep track of all your medical treatment. Keep a file for all your medical bills, records, prescriptions, and receipts for medical expenses that you paid out-of-pocket.
9. Limit Your Communication with the Insurance Company
If you haven’t hired a lawyer, the insurance company will attempt to frequently communicate with you by phone, e-mail, and mail. They may offer to pay some of your medical bills and something on top of that for your trouble. If they get you on the phone, try not to disclose too much information on your injuries. They will do their best to catch you off guard and prove inconsistencies in your statements.
Insurance companies will always send medical authorizations to you in the mail for you to sign. Do not sign any medical authorization without first discussing your case with a lawyer. Giving them access to all your medical records is a recipe for disaster.
Also, be very careful in discussing your case with the insurance adjuster. Do not sign anything agreeing to settle your case, until you’ve consulted with a lawyer. This includes settling your property damage claim when you have a pending bodily injury claim open. They may have you sign a release with you assuming that it’s only for the property damage part of your case but is an all-inclusive release of claims for both your property damage and your bodily injury. This includes checks that they send you. Cashing a check that indicates it’s a settlement for all claims, will have the same effect of signing a release. Additionally, verbal agreements are just as good as written ones in Texas. According to a case, Windell Gilbert v. Cherish Fitz, the Dallas Court of Appeals held that where an accident victim agreed to a verbal settlement of his medical bills from the accident plus $500, he was bound to that agreement. Be very careful discussing your case over the phone with an adjuster.
10. Get a Free Consultation with a Lawyer Before Making Any Decisions
Throughout the insurance claims process, there will be many decisions to be made about your case. Don’t be hasty. Even small decisions can greatly impact your case. Most car accident lawyers will give you a free consultation to discuss your case with them. Even if you decide not to hire them, you can at least get advice on how to properly handle your claim.
What if I’m at Fault for an Accident?
If you were at-fault for the accident, your liability insurance coverage will cover the other driver’s or injured party’s medical bills, lost wages, pain and suffering, property damage and other losses. In Texas, the liability minimum coverage, if you injured the other driver or party is $30,000 per person and $60,000 per accident. The liability minimum coverage for property damage is $25,000. The property damage limits include repair or replacement of the other driver’s vehicle, towing and storage fees, rental car coverage, and any other repair or replacement of property that was damaged in the accident (e.g., passenger compartment contents, fences, signs, trees, buildings, etc.). Of course, you can always buy more than the minimum coverage, such as $50,000 per person and $100,000 per accident and $50,000 in property damage liability coverage, and that is highly recommended to protect your assets, if the other party chooses to sue you. If you were the at-fault party, your vehicle is damaged or totaled, and you have “full coverage” or collision coverage, you’ll want to file a claim with your insurance company to repair or replace your vehicle. Remember, if you use this coverage, there is a deductible (usually $500 to $1,000) that needs to be paid, which will need to be paid after the repair shop finishes repairing your vehicle or will be deducted from the amount paid to you to replace your vehicle if it’s totaled. Collision coverage covers damage to your vehicle from a collision with another vehicle or other object while operating it.
If you weren’t the at-fault party, and especially if you’re injured, it is highly recommended that you hire a personal injury attorney to handle your case. Filing a claim with the other driver’s insurance company or your own insurance company, if the at-fault party doesn’t have insurance can be very tricky. It is recommended that you do not talk to the responsible party’s insurance company at all. They will attempt to call you and send you letters to get information from you that they’ll likely use against you. Remember, the insurance adjusters are not your friend even as nice as they can be while talking to you. They will do anything they can to avoid paying your claim. Avoid talking to the other driver’s insurance company and DO NOT let them do a recorded statement with you. If the other driver does not have insurance and you use your own uninsured motorist coverage to cover your bodily injury or property damage, they may require that you give a statement.
Many times, insurance companies will take their time investigating a claim when the parties do not respond to their requests for statements on how the accident occurred. This can be frustrating. If you feel that you can handle your own case, it’s important to be as brief as possible and only give the facts of the accident. Tell the truth. Try not to speculate as to what happened and be consistent in telling your side to the story (refer back to your notes, as mentioned above). Be very brief and general in discussing your injuries, if you do not hire a lawyer. Since we aren’t trained medical professionals, it’s difficult to properly express our treatment status or injuries. It’s best to let the insurance company evaluate records from healthcare professionals in order to evaluate your claim. Remember it’s the insurance adjuster’s job to pay as little as possible in any bodily injury or property damage claim. Also, keep in mind that if you accept an offer verbally from the adjuster, it’s binding.
How Long Does It Take to Get a Settlement for a Car Accident?
On average, from our own observations, we’ve seen soft tissue injury (e.g., whiplash) cases settle anywhere from three to six months, assuming the case settles before filing a lawsuit. However, much of this timeframe is dependent on how much treatment you receive for your injury. Injuries vary and all human bodies are not the same. Healing times vary according to age, whether there’s a preexisting injury or health condition, and whether consistent medical treatment is sought. If there are gaps in treatment, the time-frame can be severely lengthened. You hold the key to the speed at which your case settles. Keep in mind, your case can’t settle until you are released from all treatment. Of course, all of this is assuming there are no hiccups in your case, such as contested liability or insurance coverage issues.
For more serious injuries that require immediate emergency hospitalization or significant medical treatment, cases can settle very quickly or be significantly prolonged. A factor that affects the time it may take to settle a serious injury case is the insurance policy limits of the responsible party. If the responsible party has only $30,000 / $60,000 in bodily injury liability limits and you’ve suffered a more serious injury, such as a broken bone, you may be able to settle with the insurance company immediately. If the responsible party has something more substantial, say $1 million in bodily injury liability, it would be wise to wait until you’ve reached maximum medical improvement, before you begin settlement negotiations.
If attempts to settle your case have been unsuccessful, you may have no other choice but to file a lawsuit against the responsible party. Once the case is in litigation, the time-frame for settlement will often be extended. Unfortunately, personal injury litigation is a slow process. The good news is most cases settle before trial and most cases in litigation will settle within one to two years.
Personal Injury Lawsuits
Civil Litigation Generally
The purpose of filing a civil lawsuit is to seek relief for the injured party (plaintiff) in the form of money damages from the defendant. Your car accident injury case may reach this point if you are unable to reach a settlement with the insurance company. Keep in mind that you would be suing the responsible party personally, not the insurance company. The insurance company has a duty to defend their insured in any lawsuit that arises from claims made under the responsible party’s liability insurance policy. However, if the responsible party was uninsured or underinsured and you sought uninsured/underinsured benefits from your own insurance policy, you may be suing your own insurance company itself, if they deny or refuse to pay your claim.
There are many stages in a Texas car accident lawsuit, which are briefly discussed below.
Evaluating jurisdiction is an important preliminary consideration in any civil lawsuit. Before filing a lawsuit, you need to make sure you’re in the right court. “Jurisdiction” just means the power a court has to hear a particular case. Personal injury lawsuits are filed either in Texas state courts or in Federal District court. To file a personal injury lawsuit in federal court, there are stricter jurisdictional requirements that must be met, including “diversity of citizenship” and the amount in controversy must exceed $75,000. “Diversity of citizenship” means that no plaintiff and no defendant may be residents of the same state. In either case, the court must have “personal jurisdiction” over the defendant. “Personal jurisdiction” means the power that the court has over the parties of a lawsuit, particularly the defendant. Personal jurisdiction isn’t a problem when the defendant is a resident of the state in which the lawsuit is pending. However, difficulties arise when the defendant is a resident of another state. Usually, the defendant will need to have some sort of contact with the state in which the lawsuit is pending in order for the court to have personal jurisdiction over the defendant, also known as “minimum contacts.”
Pleadings are formal documents filed with the court that articulate each party’s legal position. The most important pleadings that you should know to get a brief understanding about personal injury litigation are the petition, answer, and motions.
The beginning of a lawsuit in Texas starts with the plaintiff filing a “petition.” In federal court it’s called a “complaint.” The petition must contain certain requirements including a “statement in plain and concise language of the plaintiff’s cause of action.” A “cause of action” is a set of requirements identifiable under the law in which relief may be granted. In personal injury cases “negligence” is the cause of action in which relief may be granted against a liable party. The elements of negligence are “the existence of a legal duty, a breach of that duty, and damages proximately caused by the breach.” Rodriguez–Escobar v. Goss, 392 S.W.3d 109, 113 (Tex. 2013).
Once a petition is filed, the defendant must respond with an “answer,” by 10 a.m. on Monday after the expiration of 20 days from the date the defendant is served with notice of the lawsuit. The answer may contain several different types of denials and defenses against the allegations in the petition or may allege procedural reasons why the lawsuit is invalid.
“Motions” are other pleadings that request certain actions from the court. They may attempt to challenge certain jurisdictional positions of the court or may ask the court to dismiss the case altogether. For example, a “motion for summary judgment” is a request to the court that either party may make which attempts to promptly end the case (partially or fully) based on there being no issues of fact that exist.
Service of Process
Once a lawsuit has been filed with the court, notice must be given to the defendant that he/she is being sued. A person authorized to perform service of process, usually a sheriff, constable, or process server, presents the papers required by law to the defendant. These papers include a “citation” and a copy of the petition. The citation simply informs the defendant that they are being sued and must respond within a certain time. This process is very fundamental to our system of justice and any deficiencies in this step could result in a dismissal of the lawsuit.
“Discovery” is the next phase in litigation after a lawsuit has been filed where all parties exchange information about the case with each other. The purpose of discovery is to avoid surprise by any party. All relevant information is discoverable, as long as they are reasonably calculated to lead to the discovery of admissible matters. A party can discover the existence, description, custody, location, and contents of documents and tangible things as long as they are in the possession, custody, or control of the party. The forms of discovery include: Requests for disclosure; Requests for production; Interrogatories; Requests for admission; and Oral and written depositions.
Mediation and Other Alternative Dispute Resolution
Texas law allows parties to participate in several types of alternative dispute resolution (ADR), including mediation, arbitration, minitrials, moderated settlement conferences, and summary jury trials. Mediation is a common form of ADR and may be ordered by the court or by the parties. In mediation, the plaintiff and defendant meet, accompanied by their attorneys, and discuss the merits of their case before a mediator, who facilitates a proposed settlement agreement. This settlement agreement is binding, if both parties agree to it, and will resolve the underlying lawsuit. If attempts at settling utilizing ADR methods is futile, a settlement may still occur at some point prior to trial.
If your case has not yet settled and the time has come for your case to be heard before the court, the trial process begins. Most of us are familiar with the court setting from watching TV and movies. There will be a judge presiding over the court and evidence will be presented by both sides. If you choose to have a jury hear your case, there will be a jury selection process prior to the trial. However, if a jury trial is not elected, the judge will take the place of the jury. The jury’s job is to hear the evidence presented and determine the credibility and weight of such evidence. They will be tasked with rendering a verdict in either party’s favor. In a personal injury case, the jury may render a verdict in the plaintiff’s favor, awarding an amount for damages to the plaintiff, or may render a verdict in the defendant’s favor, in which case the plaintiff will get nothing. If comparative fault is assigned by the jury to the plaintiff, the plaintiff’s award will be reduced by his/her own comparative fault.
There are several different ways that a personal injury case court decision can be reconsidered. Either party can file an appeal to the Texas Court of Appeals to have their case reviewed by the court. An alternative to filing an appeal to the Texas Court of Appeals, and sometimes a requirement for filing an appeal before the Texas Court of Appeals, is filing a motion for new trial, where either party requests that a trial be redone. However, this request must be based on good cause.
Will My Car Accident Injury Case Go to Trial?
It’s very unlikely that your car accident injury case will go to trial. In our experience, most car accident injury cases settle before filing a lawsuit and almost all settle prior to trial. There can be many reasons that contribute as to why most cases settle before trial, but the most obvious reason is pure economics. The fact is most insurance companies and injured parties rather settle a case without going through the time and expense of preparing for trial. Time is money and trial preparation is expensive. The statistics on this topic also demonstrate similar conclusions. Data collected by the Department of Justice, which tracks the number of automobile civil trials shows that these trials have decreased by over 28% from 1992-2005. Also noteworthy was that this data also reflected that jury awards saw a significant decrease of over 58% in that same timeframe. This could add to the explanation of more cases settling prior to trial. Additional statistics on the topic point to anywhere from 80% to 92% and even more than 95% of all civil cases settling prior to trial. Further rationale for settling before trial has been presented in a study conducted on the topic of whether settling is better than going to trial and it found that in the vast majority of cases analyzed, the plaintiff could have gotten more by accepting a settlement than proceeding to trial.
Is It Too Late for Me to Claim an Injury for My Case?
The general rule is the longer you wait to seek medical treatment after a car accident, the more difficult it will be to prove your injuries are related to the accident. The rationale for this view is twofold: (1) if you’re really hurt, why didn’t you see a doctor immediately; and (2) how do we know that your injury was caused by the accident since so much time has passed. There are four main reasons why you want to seek medical treatment as soon as possible following a car accident:
- Document your injury: When presenting to a healthcare provider soon after an accident, they will document your injury with what you tell them; they will perform diagnostic testing such as x-rays, MRI’s, CT scans, or labs; and all this information will be put into your medical records. This will act as objective proof that an injury exists and the likely cause of that injury.
- Causation: As mentioned above, seeking medical treatment temporally as close to the accident as possible will help to overcome questions of causation in your case. In car accident injury cases, you must prove “negligence.” To prove “negligence,” you must show: (1) “the existence of a legal duty, (2) a breach of that duty, (3) and damages, (4) proximately caused by the breach.” Rodriguez–Escobar v. Goss, 392 S.W.3d 109, 113 (Tex. 2013). This basically means you need to prove that the responsible driver’s carelessness caused your injuries. When you don’t quickly seek medical treatment, insurance adjusters and juries begin to doubt the source of the injury was related to the accident.
- Mitigate your damages: The law bestows a duty on all aggrieved parties—the duty to mitigate your damages —to avoid making your injuries worse by neglecting your injuries. The responsible party will not be liable for any harm that you caused yourself by avoiding seeking medical attention.
- Validity: Seeking medical care immediately after an accident bolsters your injury claim and substantiates its validity. In other words, it makes it seem less likely that you may be “faking” it.
Of course, there are several reasons people don’t see a doctor immediately following a car accident, all of which are reasonable. You may not immediately feel that you are injured or injured enough to go to the emergency room. You may not have health insurance or any money to pay for healthcare. Indeed, these are all valid reasons. However, it’s best to get advice from a car accident lawyer prior to communicating with the insurance company, especially if you’ve failed to get little or any medical treatment since the accident.
We’ve had clients not seek treatment for months after a car accident and still received compensation. But, it will definitely present significant challenges in your case and your compensation will likely be greatly reduced. You can typically justify days or even weeks why you never sought medical treatment after your accident, but months become increasingly more difficult to explain away. Do yourself a favor—if you think you may be injured, seek medical treatment immediately and avoid any problems with your health and your case!
How Common are Texas Car Accidents?
Although most of us are aware that car accidents occur far too often, many motorists are still surprised to learn just how common car accidents actually are in Texas. In fact, the Texas Department of Transportation estimates that around 14,282 serious injury crashes occurred in the state in 2017 alone. The statistics for non-serious injury crashes are even more alarming, with the Department of Transportation estimating that as many as 254,415 people were injured in car accidents in the same year, which breaks down to:
- One reportable collision occurring every 59 seconds; and
- One reportable car accident-related injury occurring every two minutes and four seconds.
Tragically, these accidents resulted in the untimely deaths of 3,727 motorists, passengers, motorcyclists, and pedestrians.
Types of Car Accidents
At Milano Legal Group Accident Attorneys, our team has experience handling cases based on a wide range of different types of car accidents, including:
- T-bone collisions, in which one vehicle strikes another broadside and usually occur in intersections;
- Head-on collisions, which tend to be particularly dangerous, as they involve two vehicles striking each other head-on and almost always occur at high speeds;
- Single-vehicle accidents, in which a driver collides with another object or runs off the road, either due to mechanical failure, driving while intoxicated, or falling asleep at the wheel;
- Rear-end crashes, which occur when the front end of one vehicle strikes the rear portion of another vehicle and often result in head and neck-related injuries;
- Rollover accidents, in which a vehicle flips over, usually as a result of mechanical failure, unsafe roads, or negligent driving;
- Sideswipe crashes, which occur when one vehicle scrapes alongside another vehicle and tend to result in few injuries, but significant property damage; and
- Hit and run accidents, in which a vehicle strikes another car or person and immediately leaves the scene of the crash.
Although all of these types of accident can end up causing serious injuries, head-on collisions, t-bone crashes, and rollover accidents tend to result in the most severe injuries, costing victims thousands of dollars in medical bills and property damage.
Hit and Run Accidents
Of the many types of accidents in which drivers and pedestrians can be involved, hit and run crashes tend to be some of the most frustrating, as recovering compensation in these kinds of cases is often more difficult.
Ultimately, how much and from whom an injured party can recover in hit and run accident cases depends in large part on whether:
- The at-fault driver struck a parked car;
- The at-fault driver collided with another vehicle; or
- The at-fault motorist struck a cyclist or pedestrian.
In all of these situations, Texas law requires drivers to take certain steps, including:
- Immediately stopping their vehicle at or returning to the scene of the accident;
- Obtaining medical attention for any injured parties; and
- Remaining at the scene of the accident until emergency personnel have arrived.
Drivers who fail to abide by these rules could face criminal penalties in addition to being required to compensate injured parties for their medical bills, rehabilitation costs, lost wages, disability, pain and suffering, and property damage.
Common Car Accident Injuries
The kinds of injuries that car accident victims often sustain depends on a number of factors, including the parties’ ages and general health, the type of collision in question, the number of vehicles involved in the crash, and the speed at which the cars were traveling prior to the accident.
There are, however, certain types of injuries that tend to crop up again and again in car accident cases, including: concussions, whiplash, broken bones, lacerations, nerve damage, and emotional distress.
If you sustained one of these, or another type of car accident injury, please call our legal team today to learn more about recovering compensation for your losses.
Contact Experienced Houston Car Accident Lawyers Today
To speak with an experienced Houston auto accident attorney about recovering compensation for your own collision-related injuries, please contact Milano Legal Group Accident Attorneys via phone or online message today.