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 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.
Total Settlement: $120,000
Attorney’s Fees (33 1/3%): $40,000
Outstanding Medical Bills: $10,000
Case Expenses: $500
Net Settlement to Client: $69,500
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 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. Defendant (Harris County)
- Facts: Plaintiff, Wenhan Nie, was sideswiped by a vehicle driven by Defendant.
- 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.
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.
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.
How Long Do I Have to File a Lawsuit for Injuries or Property Damage?
The statute of limitations in Texas to settle your injury/property damage case or file a lawsuit will depend on what type of case you have.
If you are suing the responsible party for injuries and/or property damage, you have two years from the date of the accident to settle your case or file a lawsuit. Texas Civil Practice and Remedies Code Section 16.003(a).
In cases where the responsible party didn’t have insurance or enough insurance to cover your injuries and/or property damage and you have uninsured/underinsured motorist coverage and/or personal injury protection (PIP) through your own insurance, the statute of limitations is a bit more complex.
If your own insurance has denied your claim or disagrees with the value of your claim, you may sue your own insurance company. There are typically four separate causes of action in these cases:
- Breach of Contract
- Violations of the Deceptive Trade Practices Act
- Violations of the Texas Insurance Code
- “Bad Faith”
Breach of Contract
Since your insurance policy is a contract between you and your insurance company, you generally have four years from the date they either deny or fail to properly evaluate your claim to settle your case or file a lawsuit. Franco v. Allstate, 505 S.W.2d 789 (Tex. 1974).
However, it’s possible that this time limit to sue to be shortened to as little as two years. This is discussed more in depth in the READ YOUR POLICY! section below.
Deceptive Trade Practices Act
The Texas Deceptive Trade Practices Act (DTPA) allows a consumer to recover damages from an insurance company that violates one or more of the provisions under the Texas Business and Commerce Code Section 17.50, including violations of Chapter 541 of the Texas Insurance Code as a “tie-in.”
The statute of limitations under the DTPA is two years from the date the claim is denied. Texas Civil Practice and Remedies Code Section 17.565
Texas Insurance Code
In addition to the Chapter 541 “tie-in” within the DTPA, a claim may be brought through the Texas Insurance Code, specifically under Section 541.060(a).
The statute of limitations for Texas Insurance Code claims is two years from the date the claim is denied. Texas Insurance Code Section 541.162.
Texas law recognizes under “common law,” or law established by case law, that an insurer has a duty of good faith and fair dealing when handling and processing claims.
The statute of limitations for “bad faith” claims is two years from the date the claim is denied. Texas Civil Practice and Remedies Code Section 16.003(a).
READ YOUR POLICY!
In first-party claims, insurance companies may establish a limitations period shorter than four years. Since your policy is a contract, they may “contract around” the limitations period and shorten the statute of limitations to two years!
The court in Spicewood Summit v. America First Lloyd’s, 287 SW 3d 461 (Tex. App.—Austin 2009, pet. denied), ruled that “parties may contract for a different period of time in which a party may file a breach of contract action.” So, it’s very important that you have an attorney review your policy as soon as possible.
Personal Injury Protection (PIP)
Although the first-party claims information above applies to the time limit to sue for PIP, you have three years from the date of accident to submit a PIP claim. Texas Insurance Code Section 1952.151(2)
Texas Tort Claims Act
In cases where the defendant is a Texas governmental entity, the “notice” requirement acts as a statute of limitations in that without providing proper notice to the governmental entity, you may lose your rights of recovery.
Under Texas Civil Practice and Remedies Code Section 101.101, you must provide notice to the governmental entity no later than six months after the accident. Some governmental entities have even shorter notice requirements, so it’s important to contact a lawyer immediately when a governmental entity is involved.
Service of Process
Not only must you file a lawsuit within the statute of limitations, but you must also “serve” the defendant with notice of the lawsuit within the limitations period or else use due diligence to serve the defendant with process.
According to the court in Molina v. Gears et al., No. 14-16-00858-CV (Tex. App.—Houston [14th Dist.] 2018), in order “to show diligence, the plaintiff must present evidence of the efforts made to serve the defendant and explain every lapse in effort or period of delay.”
“Tolling” may affect the statute of limitations in your case. The statute of limitations may be “tolled,” which means it may be postponed or extended.
Tolling occurs in certain circumstances such as when the plaintiff is a minor, the defendant is out of the State of Texas, or if the plaintiff or defendant dies before the statute of limitations runs.
What Makes a Strong Car Accident Injury Claim?
There are many factors to consider in determining the strength of any car accident injury case. The following factors tend to strengthen a car accident injury case.
1. Clear Liability
Accidents where there are no controversies over who was at fault and where the insurance company accepts full liability will always mean you have a stronger case.
Since Texas is a Modified Comparative Negligence state, if more than 50% fault is placed on one party, they are barred from recovering any of their damages. In addition, if an injured party is determined to be something less than 51% at fault, they can only recover a portion of their damages. So, cases where liability is clear, tend to be stronger cases.
2. Significant Property Damage
The more damage that is visible to your car from the accident, the more serious the injuries can be presumed, even though this may not be reality.
The fact is, insurance companies and juries alike will assume a more significant injury is reasonable when they see photos of a mangled vehicle. It’s all about optics.
3. Immediate Medical Treatment
Seeking immediate medical treatment after the accident will help your case. If you’re taken from the scene directly to the emergency room by ambulance it will help even more.
4. Consistent Medical Treatment
Consistent, reasonable, and necessary medical treatment with little to no gaps in treatment will only help your case.
5. Serious Injury
Serious injuries such as broken bones, fractures, concussions, or surgery will all strengthen your case. Having merely sprains, strains, bruises, or scratches usually make weaker cases.
6. Permanent Injury
Did the accident cause a permanent injury that will forever affect how you live or work? Permanent injuries significantly strengthen your case.
Unfortunately, some accidents cause horrific injuries that require an injured party to alter how they walk, communicate, and live. These types of horrific injuries make particularly strong cases.
7. Preexisting Conditions
Preexisting injuries or health conditions may strengthen your case. The law allows recovery from injuries or health conditions that were made worse by a subsequent injury caused by the negligence of another party.
This is also known as the “eggshell skull” doctrine. The “eggshell skull” doctrine states that you take your plaintiff as you find him. This doctrine was named for situations where an injured party may be in a delicate health condition and an accident significantly affected their condition more so than a person in normal health.
The more objective evidence you have of the accident, the better.
This includes pictures of the damaged vehicles involved and of injuries taken at the scene, surveillance video of the accident that may exist, witness statements, and having a peace officer complete a crash report.
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:
Rear-end accidents are the most common type of accident in Texas. Usually, caused by the inattention of the following driver.
In most cases, the following driver is following the leading driver too closely and doesn’t have sufficient time to stop. Liability is usually clear in these cases.
However, controversy may arise when the leading driver quickly changes lanes or brakes unexpectedly. The following driver is most often at fault in these accidents.
Head-on Collision Accidents
Head-on collisions can have devastating effects on the occupants of both vehicles involved.
The impact in these accidents is amplified by the fact that both vehicles are traveling in opposite directions, doubling the force of impact. Liability in head-on collisions can be a bit murky. It’s likely that both drivers involved will share some liability.
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.
T-bone accidents often occur in an intersection where one driver runs a red light and causes another vehicle to strike the side of the other.
Head, neck, and limb injuries are common in these types of accidents. Liability in these types of accidents may be straight forward if there are witnesses or if a security camera captured the accident.
Left-turn accidents happen when one vehicle is attempting to make a left-hand turn and a vehicle traveling in the opposite direction collide.
The impact in these types of accidents can be severe and cause significant injuries. Issues can arise in determining liability in these accidents if there are no witnesses.
Typically, the vehicle making the left-hand turn carries the most liability. However, if the vehicle traveling straight was speeding or ran a red light, that driver may carry some or most of the liability.
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. The most common car accident injuries include:
One of the most common injuries in a car accident, whiplash is caused when the neck acts as a whip jolting the head forward and back in a whipping motion, causing damage to muscles, tendons, fascia, and vertebrae throughout the neck.
Whiplash can have long lasting effects on the human body. Pain can last for months and even years. Whiplash can result in more serious injuries such as a concussion or bulging or herniated disc.
Even minor accidents can cause broken or fractured bones in the chest, sternum, pelvis, hips, and limbs. Bracing for impact before an accident can cause fractures to the hands and arms.
In addition, since limbs are not restrained like the body is in a seat-belt, limbs can flail striking hard objects causing bone injuries.
Broken collar bones and ribs are common injuries in high speed accidents where a seat-belt lap and shoulder straps place extreme pressure on impact over these parts of the body.
Neck pain can be the result of something as minor as sprains and strains of the muscles, tendons, and fascia of the neck, shoulders, and upper back.
However, it could be the sign of something more serious as a rupture of the carotid artery, which is fatal.
Traumatic Brain Injuries
Traumatic brain injuries come in all severity levels. Some are so mild that they may go undetected through standard testing. It’s important to get the proper treatment with neurological specialist that can identify the symptoms of a traumatic brain injury.
Alternative diagnostic technology may be required in mild traumatic brain injuries, utilizing Diffusion Tensor Imaging (DTI), Functional Magnetic Imaging (fMRI), Magnetic Resonance Spectroscopy (MRS), and Positron Emission Tomography (PET).
Concussions can be caused by direct impact to the head with any hard object or from the whipping action of your neck from impact.
The force of even the slightest impact from another vehicle can cause a concussion. Symptoms of a concussion can include headache, loss of consciousness, dizziness, ringing in the ears, sensitivity to light, mental confusion, disorientation, poor balance, blurry vision, nausea, vomiting, irritability, depression, anxiety, amnesia, lack of coordination, sleepiness, memory loss, and fatigue.
When presenting to the emergency room with concussion symptoms, make sure they perform a CAT scan or MRI to determine whether there are any serious brain injuries.
Contact Experienced Houston Car Accident Lawyers Today
Even minor car accidents can result in serious and debilitating injuries. This can be extremely frustrating and financially draining for injured parties, especially for those who were not at fault for their accidents, but were injured as a result of someone else’s negligent, reckless, or unlawful conduct.
Fortunately, accident victims who can provide evidence of negligence are often eligible to recover damages compensating them for their accident-related losses, including lost wages, medical bills, property damage, and pain and suffering.
So, if you were injured in a Texas car accident, it is critical to contact a firm with experienced Houston car accident lawyers who can help you seek compensation for your losses.
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.
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