Being injured by another's negligence is a frightening, confusing experience. Trying to resolve you injury claim with the insurer for the other person can be lengthy and frustrating. By learning how the injury claim process works, you can obtain a better result, faster and with less effort and aggravation. The information below should help you do just that.
1. What is a personal injury case?
Obviously, a personal injury case means that someone has been injured. If you are in an automobile accident and the only thing injured is your car, you may have a property claim, but not a personal injury claim. If you are in an automobile accident and both you and your car are damaged, you may have both a property damage claim and a personal injury claim. If that is the case, usually your insurance company or the other party's insurance company will handle the property damage portion of your claim.
Even if you were injured, not everyone who has been injured has a case against someone else. In order to have a legal claim regarding an injury, it needs to be the result of someone else's negligence.
If someone harmed you intentionally, you usually have a claim against them for any injuries you receive. You may also be able to have them charged with a crime. On the other hand, if you are injured by someone else who did not intend to harm you, the question is a little more complicated. You have to determine whether or not the other person's action was careless. "Negligence" is the legal term used to describe this carelessness. In general, negligence means that the other person failed to act the way a reasonably careful person would have acted in the same situation.
You also have to show that the other person had a duty not to act in the particular way that harmed you. You then must show that the other person breached that duty. You also must show that the action (or failure to act) of the other person actually caused your injury. Finally, you must prove what those injuries are, including past and future medical bills, past and future lost wages, pain and suffering, etc.
If a person is killed by the intentional act or the negligence of another, then that person's estate, or their surviving family members, may have a "wrongful death" claim against the other party. Even in a wrongful death claim, the case needs to be evaluated to determine if anyone was legally at fault, or "negligent", for what happened.
When discussing negligence, it is important to remember that it is usually a jury that decides whether or not someone was negligent when they injured you. Believe it or not, a jury could look at your auto accident where someone ran into the rear end of your car while you were sitting at a red light, and, for whatever reason, decide that person was not negligent under the circumstances, which means you would lose your case.
Particularly in this age of "tort reform", where the insurance industry has many spent many years and vast sums of money on a public relations campaign to convince the public that most personal injury claims are bogus, juries are often very reluctant to give much, if any, compensation to injured persons. Therefore, it is important that your case be presented as strongly and persuasively as possible.
You can never assume that your case is so clear cut that you will automatically win. Even an experienced personal injury lawyer cannot promise you what the outcome of your case will be if you go to trial (if any lawyer promises you a certain outcome at trial, you should get up and leave their office immediately). The point of this is that there are no "easy" personal injury cases. This is an important point to remember when evaluating, with the help of your attorney, the strengths and weaknesses of your case, the possible value of your case, and whether or not you should settle your case or take it trial.
Note that the most common source of serious injury claims is automobile accidents, so many of the examples below will refer to car crashes. To see the most common data on car accidents in Texas, go to http://www.txdot.gov/government/enforcement/annual-summary.html. For car crash data around the nation, go to https://cdan.nhtsa.gov/stsi.htm.
First, let's deal with some myths regarding personal injury claims.
10 Myths about Personal Injury Cases:
The most common, false beliefs about Texas personal injury cases are:
1. If I write the insurance company a nice, reasonable letter, I will receive a reasonable settlement offer.
2. If I am injured in an accident, and it was not my fault, there will always be an insurance company that will pay for my injuries, pain and suffering, and lost wages.
3. If another person hits me in an automobile, his insurance company is required to pay my medical bills as soon as they are incurred.
4. When I have been an accident, the legal system is a way to get rich.
5. All lawyers who advertise for personal injury cases have the same experience and ability.
6. I should choose my personal injury lawyer based on the biggest ad in the Yellow Pages, the internet or on television.
7. If I am in an accident and the other person's insurance company requests a recorded statement, I must give one or they will not settle my case.
8. The insurance adjuster is my friend.
9. The main goal of the insurance company is to pay me fair compensation as soon as possible.
10. Texas juries are generous.
2. The Reality of Personal Injury Cases:
In theory, insurance companies provide a valuable service by spreading the risk we all face that we will be in an accident and incur expenses that we could not afford on our own. Insurance is a way for many people to pool their money to protect against the chance of one person (or a few people) incurring a large financial loss. In a perfect world, when you are injured in an accident, the insurance company would pay you a prompt, fair settlement for your injuries.
Unfortunately, the reality is often different. Insurance is a business like any other. Their goal is to make a profit. The more premiums they collect, and the less they pay out in claims, the more money they make. This profit motive causes the insurance company to work very hard to pay you as little as possible (or nothing) for your injuries.
The insurance company (even your own insurance) is not your friend. They make money by collecting and investing premiums, not by paying claims. And, when you have been hurt by someone else, and you are trying to get the other person's insurance to pay for your injuries, the insurance company will fight you even harder. The insurance adjuster may discourage you from talking with an attorney. The adjuster may ask you to give a recorded statement, where you might say something that would damage your case. Keep in mind that the insurance industry has spent many years and vast sums of money on two projects. First, they have conducted a vast public relations campaign to convince the public (from which juries are drawn) that most personal injury claims are bogus.
Second, insurance companies have spent a fortune and many years convincing lawmakers around the country to change the law to reduce or eliminate your ability to go to court to recover compensation when you are severely injured. Since the insurance industry is one of the richest in the country, and since it donates large sums of cash to political campaigns, the industry has been very effective in getting politicians to vote in their favor at the expense of the individual. Simply put, money talks, especially in politics.
As you fight the insurance company, trying to get them to pay for your injuries, you may have medical bills piling up. The insurance of the other person who injured you in your accident is usually under no obligation to pay your medical bills as they are incurred. This can cause severe financial hardship for many accident victims. This is one reason why it is important in serious accident cases to discuss your claim with an attorney as soon as possible. The attorney can evaluate your claim to determine if someone else was legally at fault, find out if there is insurance available to help pay for your injuries, and discover if there are any legal deadlines that must be met in order to avoid losing your ability to file suit on your claim.
Insurance companies often encourage injury victims not to hire an attorney. While it may turn out the your case is the type does not need an attorney, that decision should be made after you are fully informed regarding both your rights and how the personal injury claims process works. The information in this book should help you to avoid some of the most common pitfalls victims encounter in pursuing a personal injury claim.
The goal of the insurance company in your case, quite simply, is to resolve your case while paying you the least amount of money (or no money, if possible). They are not your friend. Therefore, you should be suspicious of any advice given to you by the insurance company for the party that injured you. Even the advice given to you by your own insurance company should be reviewed with the help a lawyer to insure you receive all the benefits to which you are entitled.
The goal of some personal injury attorneys is to sign up as many cases as possible by making promises they cannot keep. They cannot keep their promises to you precisely because they are too busy with too many cases. They do not have time to do a thorough evaluation of your case and to give you a full explanation of the strengths and weaknesses of your claim.
If you hire this type of attorney, they do not have time to carefully prepare your case for settlement or trial. And, unfortunately, some attorneys do file frivolous lawsuits, which waste precious judicial resources and make it harder for the valid cases to get to trial. If your case has problems that make it unlikely you can win, you deserve to be told that right up front, before you waste your time and energy pursuing a flawed claim.
3. 5 Bad Things That Can Happen During the Injury Claims Process
1. The person at fault may not report the accident to their insurance company.
2. The insurance company may delay investigating the claim and accepting responsibility for the accident.
3. The person responsible for the accident may not have insurance coverage. If this is the case, you will have to file your injury claim with your own automobile insurance policy. If you do not have full coverage you may not be able to make any recovery. This is why every automobile owner should always add "Uninsured Motorist and Underinsured Motorist" (UM/UIM) protection coverage, as well as "personal injury protection" coverage (PIP), when the buy automobile insurance. UM/UIM helps repay costs that the other motorist's insurance (or lack thereof) cannot cover. PIP pays some of the out of pocket costs for medical treatment that you incur after an accident.
4. If are still paying off your car loan, and you fall behind on your payments because of medical expenses or missed work after an accident, the bank or the car dealership may repossess your car.
5. You may have paid too much for your car, including financing costs and the sales price. If this is the case, and your car is a total loss, you may be "upside down" on you loan. This means that the value of your vehicle is less than the amount of the loan that you still owe. In other words, you may end up without a car but still having to pay more money to pay off the loan. This also makes it very difficult to obtain another vehicle. To help protect against this there is a type of insurance coverage called Guaranteed Auto Protection ("GAP") insurance that he is good protection to consider buying if you buy a new car. It is also a good reason to search for the best deal on a car, including buying a used vehicle to avoid paying the new car "premium" that puts your finances at risk if you have an accident.
4. How do insurance companies and adjusters operate?
Usually, after an accident, while you are receiving treatment for your injuries, the party at fault in the accident will notify their insurance company. You also may contact your own insurance company in order to take advantage of any coverage they will need to provide, including the uninsured motorist protection (UM/UIM) and personal injury protection (PIP) coverage mentioned previously. The adjusters and investigators for the insurance company have lots of experience and they understand the importance of immediately investigating and processing accident claims.
Understand that the other person's insurance company has no obligation to inform you of your legal rights. All insurance companies employ very experienced defense attorneys, who sole responsibility is to protect the financial interests of the insurance company. Insurance companies are mainly in business to make money, not to pay claims. The less they pay out in accident claims, the greater their profit.
Insurance adjusters are trained to take advantage of the lack of knowledge most claimants have about their legal rights and the value of their accident claim. The adjuster may seem like a nice person who is friendly and pleasant over the phone and seems concerned with your welfare. In fact, they might actually be a nice person. However, never forget that their primary job is to protect the insurance company. The way they protect the insurance company is by finding a way to not give you any money, or if they have to pay you money they want to make sure they pay you as little as possible in order to resolve the matter and make it go away.
When you talk to the adjuster, he or she may try to get you to minimize the impact or extent of your injuries, or to get you to accept some responsibility for the accident that was really not your fault. They may also tell you how difficult would be it would be for you win your case in court. These are all standard tricks of the insurance adjuster, and ones that an experienced attorney can help you avoid.
Recently, the American Bar Association published an article that shows that one large insurance company started a new program for training insurance adjusters. In this program, adjusters are encouraged to do whatever they can to speak to victims before they hire lawyers, including listening to police radios and visiting accident scenes.
5. So, knowing all this, when you have been injured in an accident, what should you do?
First, do not let anyone pressure you, threaten you, or intimidate you into making a quick decision or signing any type of document. It is very common for insurance adjuster to try to get you to sign away your rights quickly. If you do this, you will regret it later.
Second, document your injuries and the accident itself. Gather all medical records, accident reports, witness statements and contact information in a folder. Take photographs of the accident scene and your injuries as soon as possible and keep them with your file. As the old saying goes "a picture is worth a thousand words", documenting your claim with photographs is worth thousands of dollars in helping you win a fair settlement or verdict for your accident.
Third, get as much information as you can about the personal injury claim process. Reading this guide is an excellent start. Discussing your case with an attorney that handles personal injury matters on a regular basis and getting a "no obligation" evaluation of the strengths and weaknesses of your claim is also important.
6. You usually will receive more for your accident claim if you hire an attorney.
Why do you think insurance companies engage in the outlandish behavior mentioned previously in order to get to injury victims before they hire an attorney? They are not doing it to help you. They are doing it to help their bottom line.
The Insurance Research Council conducted a study that found that injury victims that use lawyers in personal injury claims receive more money than those who do not use a lawyer, even after the attorney's fees are paid!
Insurance companies do not want you to hire a lawyer because they know they will end up paying more money for your claim. Insurance companies make profits by collecting premiums, not by paying claims. The less they pay you, the more profit they make. Insurance adjusters are not promoted or rewarded for paying out more money than they have to in claims, but by paying out less.
Many people every year do nothing, or accept much less money than they should, regarding their injury claim. Usually this is because these people do not know what to do after they have been injured, or they are lead to believe that what they receive is all the money they can get. Many times, these injury victims feel confused or afraid. Do not let this happen to you. When you have been injured, doing nothing is the worst thing you can do.
What, then, should you do? Carefully review the following seven "fatal mistakes" that most accident victims make. Being aware of these mistakes will help you to avoid them, and usually will help you recover more money for your claim. This is important information that insurers hope you never find out!
7. 7 Deadly Mistakes that can Wreck your Texas Accident Case
Mistake # 1. Failing to take immediate action at the accident scene to insure your rights
After an accident you are usually shocked and confused and it is hard to make decisions. However, there are certain steps you should take immediately after the accident in order to protect yourself. Failure to do this could have serious consequences for your case. Remember that the following advice can apply to any type of injury case, not just automobile accidents.
When you have an auto accident. Stop your vehicle, but do not block traffic. Texas law prohibits you from leaving the scene of an accident, even if it is minor, until you first stop and see if there are damages or injuries. Remember to protect yourself. Do not immediately jump out of your car as you may be struck by oncoming traffic. If possible, move the vehicles out of the lanes of traffic. If you're unable to move the vehicles out of traffic, warn other cars by setting out flares, turning on your hazard lights, and opening the trunk and hood of your car and any other vehicles involved.
Assist anyone is been injured, but, if someone has a possible spinal injury, do not move them any more than absolutely necessary to get them out of immediate danger. Get the name, date of birth, phone number, address, driver's license number, license plate number and all other information of anyone else involved in the accident, including witnesses.
Do not argue with the other driver. Do not accuse anyone of being at fault, and do not admit fault. Stay calm. Remember that anything you say he can be used against you later. Do not discuss the accident with the other driver.
Call the police to come and complete an accident report. If it is an emergency, you can dial 911. If it is not an emergency, dial 311. Many times the other driver will try to talk you out of contacting the police. This is a mistake. Sometimes, the police will not come to the scene of a minor accident, but this is a decision you should let the police make. Be sure and call the police anyway, any time you are in an accident.
If an officer arrives at the scene, request that they make a written report and ask them to give you the incident number for the accident so that you can get the report later, usually from the Texas Department of Public Safety records bureau. Get all information from the officer including his name and badge number and be sure and find out which police agency they are from (sheriff department, police department, Texas Department of Public Safety, etc.).
The police report should be available for you to pick up a few days after the wreck. Be sure and ask the officer where you can obtain the report. If you have an attorney, they will often get this report for you but if they do not, be sure and get it yourself. Once you get the report, review it very carefully to make sure all the details are correct. If there is a mistake in the report, contact the investigating officer and ask if they are willing to correct the report. They will often do this if you notify them soon after the accident. Do not wait too long to request this correction, because the officer's memory of the accident will fade over time and they may be unwilling to change the report later.
If you were injured somehow other than in an automobile accident, for instance in place of business, demand to speak to the manager and insist that they make a written accident report. Also request that any video evidence, such as a security camera tape, that may show the accident be preserved. Preserving such evidence may be crucial to proving your case later.
Be sure and write down the names, addresses phone numbers and license plate numbers of all witnesses to the accident, as well as all the parties involved. Pictures are very valuable in proving what happened at an accident scene. If you happen to have a cell phone that will take photographs, use it. If you do not have such a cell phone, it is a good idea to buy a cheap disposable camera to keep in the glove box of your vehicle, and use it to document any accidents.
Remember to be safe, watching out for oncoming traffic. Take pictures of all the involved vehicles from different angles. Also photograph the street, including any stop signs and traffic signals. Also photograph skid marks and any other physical objects that may been damaged, such as telephone poles and guard rails. If possible, photograph the other drivers, witnesses and passengers. If you have been injured in are unable to take photos, please ask someone else to do it for you. If your cell phone is able to record video, that is useful as well in showing what happened at the scene.
It is a good idea to keep a pen and paper in the glove box of your vehicle. After an accident always exchange all your information with the other parties and get as much information as you can from the other persons, including their insurance information.
Be careful about making any statements regarding the accident except to the police or to emergency personnel such as EMS or fire department paramedics. If you feel unsafe or threatened at the scene of an accident, stay in your car with the doors locked until the police arrive.
Mistake # 2: Not documenting everything that occurs after the accident
After an accident, it is important to document all the details immediately. If you wait, memories fade, wrecked vehicles are repaired or disposed of, witnesses move away, and other evidence becomes harder to locate. It is also helpful to keep a journal of your injuries and recovery, making a daily entry detailing pain, difficulty performing certain activities, what medications you had to take, and other difficulties caused by your accident. If you make these notes daily and include the date, they may be admissible to show, among other damages, pain and suffering, if your case goes to trial.
Mistake # 3: Delaying visiting your doctor or not cooperating with your doctor
Seek medical treatment from a physician (M.D.) as soon as possible after your accident. Obtain and follow the recommendations for treatment from all the medical providers who treat you. Do not discontinue treatment until your physician advises you to do so. And do not take any "breaks" from your treatment - stay on the regular treatment schedule ordered by your doctor. Failure to do any of the above provides the insurance company and their lawyers the opportunity to argue that you were not really injured, or that your injuries were not very severe, or that you aggravated or prolonged your injuries by failing to follow the recommended treatment.
Mistake # 4: Signing papers or giving statements without talking to a lawyer first
The insurance adjuster will usually ask you to give a statement of what happened and to describe your injuries. They may even offer you a settlement and ask you to sign a release. You should not do either of these until you review your case with an attorney. Otherwise, you might say something that damages your claim. Or, you might settle your case for less that the amount to which you are entitled if you do not know your rights and the strengths and weaknesses of your claim. Also, you might settle your case before you are completely healed, or before you know the full extent of your injuries.
Once you settle the case, you can not return later and seek more money from the other party or their insurance, so you need to make sure you are receiving full and fair compensation for your injuries before you sign any release. You usually will receive more compensation if you are represented by a competent personal injury attorney than if you try to do it yourself.
Mistake # 5: Not hiring an attorney, or hiring the wrong one
If you have a "fender bender" with only property damage or some minor "soft tissue" damage, you may be able to settle it quickly and for a reasonable amount without using an attorney. However, if your injuries are more severe, or if your case is more complicated, you may benefit from having an experienced attorney evaluate your claim and possibly represent you.
Be sure that the attorney you consult with handles personal injury claims on a regular basis, and not just as a sideline to his other practice areas. In today's complicated legal environment, it is difficult to be a "jack of all trades". If a lawyer handles cases from many different areas of law, it is difficult for him or her to be knowledgeable and up-to-date with the legal developments in all of those areas. And, it is hard for him to get sufficient experience in personal injury matters to develop good trial skills.
You would not want a specific type of surgery to be performed by a general practitioner who studied some surgery in medical school. In the same way, you need a trial lawyer who handles personal injury on a regular basis to handle you claim. The best leverage you have in trying to settle a claim with an insurance company is an attorney that has the ability to take the case to trial if necessary and who might win more than the insurer's settlement offer.
Mistake # 6: Not being completely honest with your attorney, or failing to cooperate with your attorney
You must be completely honest with your attorney regarding what happened in your accident. You also must disclose any preexisting injuries, previous accidents, prior lawsuits, criminal history, drug and alcohol problems, work history and any other area of your past. Remember, in a personal injury lawsuit, the opposing attorney has the right to ask about any and all aspects of your past history, including your complete medical history. Therefore, you must disclose all of this information, especially the facts that you think might hurt your claim, so your attorney can evaluate them and work to limit any damage they might cause.
If your attorney knows about a problem with your past or with your case, they can work to limit the damage to your claim. However, if your lawyer is surprised by such information in a deposition or at trial, it can ruin your credibility and cause you to lose your case. If you lose the appearance of credibility with the insurance adjuster, the opposing attorney, the court or a jury, you will most likely lose your case. Besides, if something about your past or the facts of your claim will make your case difficult or impossible to win, you need to know that up front, before you spend lots of time and energy pursuing a losing claim.
Mistake # 7: Exaggerating your injuries, or not being completely honest in any other way
As stated previously, credibility is absolutely essential if you hope to recover full compensation for your injuries. The best gift you can hand the opposing attorney is for you to lie or exaggerate your injuries. Once that happens, the case is usually lost. The best way to avoid this is to be completely honest, always. Be honest with your lawyer, be honest during depositions, be honest during settlement negotiations, and be honest during trial. That way, your story is always consistent and you never have to remember what you said before. Honesty also means admitting when you do not know or cannot remember something. There is no shame in not knowing all the details of every aspect of your case. Be honest and you will usually do fine in pursuing your claim.
8. 7 More Mistakes That Can Destroy Your Injury Case
1. Waiting too long before seeking legal help.
Texas law requires that you file your personal injury lawsuit within a certain amount of time after your injury. Otherwise, you will be prevented from ever filing a lawsuit on that claim. This is known as the "statute of limitations" for your claim. Your deadline can be affected by the details of your particular case. Also, if your claim involves any type of governmental entity (city, county, state, national) there are often much shorter deadlines with which you must comply. Waiting too long can be fatal to your case. Therefore, it is crucial that you contact an attorney as soon as possible to avoid missing these deadlines.
2. Hiding past accidents, injuries, job firings or lawsuits from your attorney.
If you file a lawsuit regarding your injuries, the opposing party has a right to obtain all your past medical, accident and work history, as well as information on whether you have sued anyone or been sued by anybody before. Even if you do not give it to them voluntarily, they can probably obtain it from other sources, such as the insurance databases that all insurance companies subscribe to, court records or employee records. If you lie about any of these issues and get caught, your credibility is destroyed, and you will almost certainly lose your case. If you tell your attorney upfront about all prior accidents, injuries, job firings, drug and alcohol problems, bankruptcies and lawsuits, he can evaluate whether or not it will be a problem for your current case. However, your attorney cannot deal with an issue about which he does not know.
It is particularly important that you be completely honest with your attorney regarding past injuries. If you saw a medical provider regarding that injury, there is a record that the insurance company will find. If you let your attorney know about a prior injury, he or she can evaluate it and deal with it. If you lie about it are later found out, your case is destroyed.
3. Getting a doctor referral from your attorney.
When juries find out that an attorney referred the client to a particular doctor, they become very suspicious of that relationship. The insurance company can find out how many times that attorney has referred patients to that particular doctor. A single referral raises suspicions. Multiple referrals confirm those suspicions. The only exception is if the client needs a very specialized type of medical care and the attorney steers them in the right direction. Make sure you understand the referral relationship between your attorney and that particular doctor before you accept any referral to that doctor. If an attorney pressures you to use a particular physician, you should avoid hiring that attorney.
4. Having inaccurate tax returns.
Most accident cases involve lost income. However, you can only claim and prove lost income if your tax returns are perfectly accurate. Also, lying on your tax returns could lead to more serious problems (criminal charges). Your attorney can help you deal with any potential problems in this area, but only if he knows about the problem beforehand.
5. Misrepresenting your activity level
Believe it or not, insurance companies regularly hire private investigators to conduct videotape surveillance of injured claimants. If you claim you cannot do a certain activity, and you are caught on videotape doing it, your claim is over. The key here, as in the rest of your personal injury claim, is to never exaggerate, either to your attorney, the insurance company, a judge or a jury. Honest, injured people can still obtain good results in court, but liars lose.
6. Exaggerating your injuries
To be successful in a personal injury claim, you need to be totally honest. This is particularly true in today's climate, where many jurors are suspicious of personal injury plaintiffs to begin with. If you exaggerate your injuries, the other side (and your jury) will usually find out. Once this happens, they can portray you as a liar and your credibility is ruined. You must be honest with your attorney from the very beginning regarding the circumstances surrounding your accident, your previous accident history, your previous medical history (including any prior injuries), your previous work history (including reprimands and firings), your previous involvement in lawsuits, and all other aspects of you and your background. If your attorney knows about any potential problems ahead of time, he can deal with it. But he can only deal with the problems about which he knows.
7. Not working with your attorney as a team
Although the attorney is in charge of preparing the case, he or she will need your help to do so. During the course of a personal injury case, it is essential that your attorney be able to contact you and, when necessary, enlist your help in obtaining certain information and documents. You will also need to be available to assist your attorney by answering discovery requests (formal, written requests for information) from the other side, preparing for depositions and preparing for trial. The best attorney in the world cannot help you if you do not assist him in preparing your case.
Remember that when you go to trial, you are "Exhibit A". If the jury does not like you and does not believe you, they will look for a way to deny you what you are requesting, and you will lose. The way to be likable and believable is to assist your attorney in preparing ahead of time for your testimony, being completely honest at all times and being courteous to everyone involved in the case, including the opposing attorney. If the jury likes you and believes your story, they will usually try to find a way to help you recover for your injuries.
9. 7 Automobile Insurance Definitions
It is important that you understand the basics of automobile insurance coverage when dealing with an accident. The following definitions should be helpful to you.
1. Bodily injury liability
This type of insurance requires that your insurance company pay the claim to a person who is injured because of your carelessness or the carelessness of some driving your car. However, the insurance company is only liable up to the amount of coverage you bought. For example, if you bought the Texas minimum liability limits of $30,000.00 per person and $60,000.00 per accident (often written in insurance shorthand as "20/40") your company will pay no more than $30,000.00 to each injured person and no more than $60,000.00 total for any one accident. You would be personally liable for any damages above those insurance coverage amounts.
2. Property damage liability
This type of coverage is similar to the bodily injury liability coverage discussed above, except that it covers damage to another person's property and not physical injuries. As with bodily injury liability, insurance companies only obligated to pay up to the amount of coverage you bought. The minimum limit for this type of coverage in Texas is $25,000.00. The insurance shorthand for minimum bodily injury liability of $30,000.00 per person and $60,000.00 per accident and property damage liability of $25,000.00 would be written as 30/60/25. Obviously, $25,000.00 he is nowhere near enough money to repair a badly damaged the vehicle in this day and age, so you should consider purchasing additional coverage, which can be surprisingly inexpensive.
This type of insurance requires the insurance company to pay you for damage to your car caused by something other than an auto accident (for example, theft, vandalism or fire). The Company's obligation is reduced by the amount of "deductible" you purchased. If your deductible is $100.00, and that means you pay the first $100.00 in damage and the insurance company pays the rest.
This coverage requires that your insurance company pay you for damage to your car caused by an automobile accident. Again, the amount your insurance company must pay is reduced by the amount of deductible you purchased.
5. Personal injury protection
This type of insurance coverage (PIP) pays the reasonable medical expenses of anyone in your car who is injured in an accident, regardless of who was at fault. You and most members of your household do not even have to be in a vehicle for this coverage to apply. For example, if you are struck by a car while you are walking, you would still be covered. This coverage can also repay you a portion of your lost earnings. Of course, as with any insurance, the amount the insurance company must pay is limited by the amount of coverage you purchase. In Texas, you can purchase personal injury protection in amounts of $2,500.00 or higher. We recommend that you purchased as much of this coverage is you can afford, because it is cheap insurance and is very useful if you're involved in an accident.
6. Uninsured motorist
If you or the other occupants of your car are injured by an uninsured driver this coverage (UM) will pay for physical injuries. This coverage substitutes for bodily injury liability insurance that the other driver should have had, but did not. Again, this coverage is limited by the amount of insurance you buy. Also, like personal injury protection, this coverage applies, whether you are a pedestrian or whether you are an occupant of a vehicle.
7. Underinsured motorist
If you or the other occupants of your car are injured by a driver whose liability insurance is insufficient to cover the full value of your physical injury claims, this insurance (UIM) will make up the difference. As always, the insurance company's obligation is limited by how much coverage you purchased. And, as with uninsured motorist and personal injury protection, this coverage is not limited to occupants of automobiles.
10. How do injured Texans win the "insurance war"?
You should not be shy about asserting your right to be compensated for your injuries caused by someone else. After all, just like everyone else who purchases insurance, you paid in advance so you will be able to recover your losses if you get hurt. So, it may sound strange to you when I tell you that, from the moment you were injured by someone else's carelessness, you entered a war zone. So, why do I refer to this situation as a "war zone"? This is war because in the last few years insurance companies and many government officials have worked very hard and spent vast sums of money in order to limit the ability of injured Texans to recover fair compensation when they are injured. This is a war to deprive you of your ability to recover your rightful compensation when you have been injured.
This campaign has been sold under the name "Tort Reform". The tort reformers claim that their goal is to lower insurance rates for individuals and decrease the cost of doing business. In reality, it is a cynical effort to increase the bottom line of the insurance industry and to help businesses avoid liability when they injure their employees or the public. If you don't believe it, ask yourself: "Have my overall insurance rates decreased since the start of tort reform?" The answer for most people is a resounding "No!" Also, talk to any one of the thousands of people who have been mistreated by the insurance industry after an accident and see if they think tort reform has helped their situation.
You should also know that the tort reform advocates succeeded in imposing "caps" that limit damage amounts that may be awarded in certain types of personal injury cases. This means that the decision of how much to compensate you when you have been injured by someone else has been taken away from juries and placed in the hands of your legislature. The Texas legislature has "capped" damages without regard to the individual circumstances of different cases.
For example, if you collide with your physician on the freeway, he can sue you and recover millions, depending on his injuries. However, if that same physician maims or kills you through his negligence during surgery, you can only recover $250,000.00 worth of noneconomic damages (pain and suffering) under most circumstances. If you are a child, a nonworking housewife or a retired elderly person, you usually cannot claim any lost income, so this will probably be all the compensation you can ever recover from the doctor or hospital that injured you. Does that seem fair to you?
Since insurers know that now, thanks to "tort reform", it is now much harder for you to recover compensation through the courts, they have even less incentive to offer you a reasonable settlement. And, because medical malpractice cases are so expensive to prepare and you are severely limited on what amount you can recover, it also means you may not be able to find an attorney willing to take your case.
Regardless of how you feel about tort reform, it is important to remember that the vast insurance industry propaganda media campaign regarding tort reform has strongly influenced potential jurors. When you walk into a courtroom in Texas, you must understand that many jurors will assume upfront that your lawsuit is frivolous (think the "McDonald's coffee case") and that you're trying to "get rich quick". So even if you believe that there are many "frivolous lawsuits" and that yours is one of the rare legitimate cases, you are already at a disadvantage in the mind of your jurors.
Knowing this, insurance companies will usually not offer a fair settlement unless you are ready, willing and able to go to trial. Think about it. The only thing that forces an insurance company to take your claim seriously is the threat that you might file a lawsuit, take them to court and win more money than they offer to settle.
This also highlights why it is very dangerous to trust your case to an attorney that runs a "settlement mill", meaning they take too many cases, hope to settle all of them, and never take anything to trial. If they are forced to take something to trial, they "farm the case out" to a trial attorney. The insurers know which attorneys take cases to trial. If the insurance company knows that your attorney never takes anything to trial, they will not take your claim seriously and will not offer you anything reasonable in settlement. Also, if your case does need to go to trial, wouldn't you rather start out with an attorney that is ready, willing and able to try your case?
11. What must be proven to win your case?
Just because you are injured does not mean that someone else must compensate you for your injuries. Some accidents are just unfortunate events where no one was at fault. Unless someone else's carelessness, or "negligence", caused your injuries, you do not have a viable case. Even if someone else's carelessness did cause your injury, under certain circumstances you still may not be able to sue them.
You must also understand that in Texas the law of "comparative negligence" controls how much money, if any, you can recover from someone who causes your injury. If the jury finds that you were partially at fault for the accident, they will reduce the amount you recover by the amount you were at fault. If the jury finds you were more than half at fault for your injuries, you will recover nothing.
For example, if your damages total $100,000.00 and if a jury awards you that amount but determines that you were 20% at fault, your $100,000.00 would be reduced by 20%, or $20,000.00, leaving you with $80,000.00. If the jury finds that you were 51% or more at fault in your accident, you will recover nothing. It may not seem fair, but it is the law in Texas. After we evaluate your case we will discuss with you the issue of comparative negligence to determine whether or not you have a case worth pursuing.
12. Do you need an attorney at all?
Not every case needs an attorney. Many small injury cases can be settled directly with the insurance company. Often, it makes more sense to settle a small case without the help of an attorney because attorney's fees and other costs, including your medical bills, might leave little or no compensation for you when the case is finished. This is especially true of a "fender bender" with some minor property damage and perhaps some minor "soft tissue" physical injuries, like a sore neck or sore back that clears up in a few days.
On the other hand, if your case involves serious injuries or complicated issues of liability (meaning who is at fault) it becomes more important to have an attorney working on your side, or to at least to consult with an attorney prior to talking to the opposing party or the insurance company.
13. What is the truth about attorney advertising?
Looking for an attorney to help you with your personal injury case can be an overwhelming experience. If you open the Yellow Pages, surf the internet, or turn on the television you are bombarded by advertisements for attorneys claiming that they handle personal injury cases. Many of these ads say the same things, such as "no fee if no recovery", "get the money you deserve", "aggressive trial lawyer" or "insurance companies fear us". They may even have a gimmick such as a photograph of a bulldog or a shark to show that they are tough. What exactly does all this mean? How do you go about telling these attorneys apart? Most importantly, how do you choose the right attorney for your case?
When you see "no fee if no recovery", remember that you are almost always liable for your medical expenses, regardless of how your case turns out. If you win enough money, that money can be used towards paying off those bills. However, if you lose, or do not recover enough money, you are still responsible for paying your own medical bills. Be sure and clarify exactly how any recovery is divided as well as what bills you are responsible for (no matter how the case turns out) with any attorney you are considering hiring.
Also remember that many health insurance policies allow the insurance company to take away any compensation you obtain from the party that injured you in order to pay the insurance company back for money spent on your injuries. This is known as "subrogation" and can be very complicated. It is always a good idea to investigate possible subrogation claims with an attorney as early in your case as possible. Otherwise, you might receive a nasty surprise when your insurance company tries to take away your settlement money.
When you read such phrases as "get the money you deserve", be wary of any attorney that promises you that it will be easy to get you lots of money. Any attorney who promises you this is not telling you the truth, because no one can predict exactly what will happen ahead of time in trying to either settle your case or take it to trial. After a careful evaluation of your case, an attorney should give you their opinion of your chances of succeeding in recovering for your injury, and they might give you some idea of what the case may be worth, but they cannot honestly promise a particular outcome.
Remember also that the evaluation of the case is an ongoing process. The prospects for a case may change as new facts are discovered during the investigation and preparation of your claim. An honest, experienced attorney will usually admit that they have lost cases they probably should have won and they have won cases that they probably should have lost. They will also admit that they do not know exactly why this happened other than the fact that lawsuits involve people, and people are unpredictable. This also hints at the value of settling a case, where appropriate, to avoid the uncertainty of the outcome at trial.
If the attorney advertisement states that he is an "aggressive trial lawyer" find out exactly what this means. Does the attorney actually take cases to trial, or does he settle most of them, or refer them out to other attorneys when cases need to go to trial? Also, what does "aggressive" mean? Every attorney should zealously represent their client, but if they are obnoxious to the opposing attorney or the insurance adjuster, or for that matter, the judge or jury, they may do more damage to your case than someone who treats everyone involved with courtesy and respect while fighting for your rights.
Being effective is not the same as being rude. Remember, some jurors already have in their minds a stereotype of a personal injury trial lawyer as a greedy, obnoxious, dishonest opportunist. If your attorney's demeanor reinforces this stereotype, you may have a problem. If the jury does not like your attorney or does not believe your attorney, they will usually find a way to make you lose.
If an attorney claims that "insurance companies fear us" be careful. The reputation of your attorney is important in that insurance companies respect attorneys that thoroughly prepare and are willing to take cases to trial. However, remember that insurance companies also have excellent attorneys, and these insurers deal with claims like yours all the time. Thanks to the successful insurance industry public relations media campaign that has convinced many potential jurors that all personal injury plaintiffs are out to "get rich quick" with a frivolous lawsuit, insurers are often willing to "roll the dice" by taking a case to trial, regardless of who the attorney for the plaintiff is. Sometimes this is done as a matter of policy to establish the insurance company as being tough on all claims and scare away potential litigants. Therefore, it is important to have an attorney that is willing and able to take your case to trial when necessary.
It is important to remember a few other things when looking at attorney advertising. First, remember that anyone can buy an ad. A large, expensive ad in the Yellow Pages or on television does not necessarily mean that the attorney is the right one for you, or even a very good attorney. The attorney may be competent, but it is important that you check out their credentials and talk with them about how they will approach your case before you decide to hire them.
Also, make sure that they are they are not running their practice as an advertising "mill" that takes way too many cases, hoping to settle them all, and then, if cases need to go to trial, farms them out to other attorneys. They may also be under pressure to pay off all that expensive advertising and therefore pressure you to accept a "lowball" offer just to get some money out of the case quickly. You should know up front what attorney will be handling your case all the way through, and that your attorney is willing and able to try the case if necessary.
Finally, make sure the attorney's personality matches yours, since you are going to be working together for a while. To be successful in resolving your claim it is important for you and your attorney to work as a team.
14. How do you find the right attorney for your case?
The task of choosing an attorney to represent you can seem complicated and difficult. You should not base your decision just on advertising. When you research on the internet, open the Yellow Pages, or turn on the television, you see many attorneys advertising for personal injury cases, and they all say pretty much the same thing. As I stated before, remember that anyone can buy advertising.
You should review your case with an attorney you are considering hiring for your case before you actually hire them. The attorney should be able to explain to you, clearly and concisely, how the personal injury claims process works. They should also be able to explain to you the procedure if your case goes to trial. They should offer you a written contract of representation that clearly explains the rights and duties of both you and the attorney, including how any recovery will be divided. The attorney should give you a realistic assessment of your claim and of your chances of winning. You should feel comfortable dealing with the attorney, because you will need to communicate with him or her quite a bit during the course of your case.
The law related to personal injury claims has its own unique requirements and potential pitfalls. Therefore, it is important to find an attorney that deals with personal injury cases on a regular basis, and who is willing to take them trial when necessary. Understand that the insurance company on the other side knows which attorneys go to trial and which attorneys settle everything, and this affects their thinking as they evaluate whether, and how much, to offer on your case.
15. 12 Steps You Should Take to Find the Right Attorney for Your Case?
1. Ask an attorney you know to give you a referral to someone who handles personal injury cases.
2. Ask an acquaintance who has used a personal injury attorney and is happy with their results to give you a referral.
3. Contact your local bar association and see if they have a lawyer referral service. However, remember that lawyers listed in such a service have signed up and paid a fee to be listed, and their names come up on a rotating list. Being on that list does not guarantee that they are a good attorney for your case any more than does an advertisement in the Yellow Pages. However, this may be a good way to get several names to start the interview process.
4. You may look through the internet or Yellow Pages for attorneys that advertise for personal injury cases, but be careful. Remember that not everyone advertises in the Yellow Pages. For example, we receive most of our cases as referrals from other attorneys and satisfied clients. Also, watch out for ads that list too many different specialties, since no one does everything well. Ask them why, if they are so good at personal injury work, they need all those other practice areas to survive. Beware of personal injury attorneys with full-page (or multiple page) ads. These ads are very expensive and attract many of the smaller personal injury cases that our firm does not accept. If the firm advertising with a full page accepts lots of cases, be sure that they will have time to do a good job on your case. Also ask them why, if they are good at what they do, they need such a huge ad in order to get clients.
5. Interview several attorneys. Ask each attorney for the names of other attorneys who handle these types of cases. The names that come up again and again when you ask this question should constitute a good list for you to begin your search for the right attorney for your case. If you ask this question and the attorney does not give you any other attorney names, get up and leave. Any attorney who handles personal injury work on a regular basis will know of many other good attorneys who do the same work. If the attorney will not give you any other attorney names, either he does not practice in the area enough to know who else handles the same type of cases, or they are desperate to sign you up and are afraid of having you speak to other attorneys. An attorney who is desperate for cases may pressure you to accept a settlement that is less than the case is worth, or may sign up too many cases to be able to do a good job on any of them. Either way, you should not use that attorney for your case.
6. Before you talk to the attorney, ask if they have a booklet of information like this one or a web site that you can go to for more information about their methods for handling cases and their experience and qualifications.
7. You should be wary of any attorney that pressures you to sign a contract quickly. As mentioned before, not every case requires an attorney. Remember that attorneys that sign up too many cases may not have the time and resources to properly prepare your case. Also, you should be given time to review the contract at home in a relaxed setting (or even to interview several attorneys) before you make the decision to hire an attorney. As I stated earlier, there are deadlines to be away of when pursuing a personal injury claim. However, the decision of which attorney to hire is too important to do in a rushed or pressured manner.
8. Beware any attorney who contacts you, trying to get you to hire him for your particular claim. At our firm, we only send this Texas Personal Injury Guide to those who first contact us and request it. Texas has strict rules regarding attorneys, or anyone working on behalf of an attorney, who solicit clients after an accident either by telephone, in person (on the street or in the hospital, for example) or in writing. You should beware of attorneys who engage in such obnoxious practices.
9. Be wary of any attorney who wants to send you to a particular doctor or set of doctors. When it later comes out, as it always does, that you found your doctor through your attorney, it can severely damage your case.
10. Before hiring an attorney, make sure you understand how you will be kept informed of your case's progress. In our office, we usually send a copy of every piece of correspondence or pleading to the client. We also explain the estimated timeframe for the case and are happy to answer questions via telephone and e-mail. If appropriate, we can set up a telephone conference time that is convenient for both you and our office. You may also set an appointment to come in and discuss your case at a time that is convenient for you. Ask any attorney you are considering hiring how they will insure that you are kept informed regarding your case.
11. Be sure and find out who will actually work on your case. Some things can be handled by legal assistants. However, if you are hiring an attorney because you like and trust them and believe in their skills, you want to make sure that attorney is the one who is actually going to negotiate with the insurance company and, if necessary, try your case.
12. This may sound silly, but be sure that the attorney you hire is licensed to practice law in Texas. Believe it or not, some attorneys that advertise in Texas for personal injury cases are not licensed to practice law in Texas. This means that they cannot personally take the case to trial in Texas without hiring local counsel or getting special permission from the court. Insurance companies know this information and may take your out-of-state attorney less seriously as a result.
16. 17 Steps in Pursuing a Personal Injury Case
While every case is different, and not all cases require each of the steps outlined below, this is a list of the normal steps in preparing your personal injury claim, and, if necessary, trying the case.
1. Evaluate the client's claim, educate the client regarding the legal process for personal injury cases and determine any deadlines that apply.
2. Contact the opposing party's insurance company, giving them notice of the claim.
3. Gather all the evidence we can, including police accident reports, medical records, other bills and necessary affidavits, photographs, drawings, etc.
4. Interview witnesses regarding what they say and heard.
5. Analyze the legal issues related to the case, including comparative negligence and any damage limits that may apply.
6. Review the medical records and discuss the injuries and prognosis with the client's physicians.
7. Find out, by reviewing the client's insurance policies and through discussion with the insurance company, whether there are any valid liens (including the "subrogation" liens mentioned earlier) that must be repaid by the client out of any settlement or verdict.
8. Decide whether settlement negotiations should be pursued or if suit should be filed in the case.
9. If a lawsuit is filed, prepare the witnesses, the client and the health-care providers for depositions and possible trial testimony.
10. Prepare and respond to "discovery" - formal, written questions and requests for documentation that can be served by either party on the other.
11. Set the case for trial.
12. Prepare exhibits to be used at trial.
13. Prepare for and go to mediation or arbitration, where appropriate.
14. Prepare and file any necessary briefs and motions with the court.
15. Try the case before a judge or jury
16. Review the verdict to see if either party has grounds for appeal.
17. Advise the client as to whether or not they should appeal the case.
17. Do I ever have to pay back the medical bills that were paid by my own insurance company or my employer's health plan?
Believe it or not, the answer is sometimes "yes". There is a federal law called ERISA (the Employee Retirement Income Security Act of 1974) that may require you to reimburse your own insurance company or your employer's health plan using any money that you recover in your personal injury case. It is also important that you review with your attorney the terms of your own insurance policy to see if you're required to repay any of these costs. This right of your insurance company to recover their costs from your settlement or verdict, known as "subrogation", is a complicated area of law. You should discuss this issue with your attorney as soon as possible after your accident.
18. What about trying to settle the case without filing a lawsuit?
Sometimes a case can be settled without filing a lawsuit. Remember, however, that all personal injury lawsuits and Texas are governed by a "statute of limitations". This means that if you do not file a lawsuit on your injury claim within a certain period of time, you can never file suit on that claim. It is extremely dangerous to wait until you get close to the end of your statute of limitations in order to file a lawsuit, because you lose valuable preparation time and the opportunity to discover if there are any problems with your case, or if there are other parties that should be included in the suit before time runs out.
There are attorneys that routinely wait until the last minute to see if the insurance company will settle the case. If a settlement does not happen, these attorneys panic and race to find someone to file suit on the case. If an attorney accpets your case it should be because they believe that you have a valid claim and that it is usually worth taking to trial if it cannot be settled for a reasonable amount. In many cases it makes sense to file suit before beginning settlement negotiations. That way, if negotiations fail, you and your attorney are prepared to take the case to trial.
What happens after the lawsuit is filed?
After a lawsuit is filed, both sides usually send each other "discovery" requests. These are written questions about the accident, the injuries, the medical treatment, prior medical history and requests for documentation related to all of the above. Each side is allowed to discover what the other side will say at trial and their legal theories of the case. The opposing attorney will be permitted to see your medical history, your work history and your financial history. You may have to submit to a medical examination with a doctor chosen by the defendant. You may also have to give sworn testimony at a deposition. We are allowed to find out all of the above information about the opposing party as well.
Most courts will require the parties to attend mediation. This an informal process where a mediator attempts to help the parties resolve the case short of trial. If they reach an agreement, they sign a mediated settlement agreement that resolves the case.
If mediation does not work, the parties go to court and have a trial. Going to trial adds time and expense to the process. The trial can last a few days to a few weeks depending on how complex it is. Usually the case is tried to a jury, which answers questions of who is at fault and what the damage amounts are in dollars.
Following a trial, either party has the ability to appeal the verdict if they believe they have legal grounds to do so. The appeal process can be lengthy and expensive.
Usually, resolving the case as early in the process as possible helps the victim by providing money for treatment and allowing them to begin the process of moving on with their lives. However, you must be willing to fight if the other side will not take responsibility for what they have done and do the right thing by paying the victim for their injuries.
19. A firm dedicated to helping you "Settle for More"
Experienced Austin, Texas personal injury attorney David Todd and the Todd Law Firm are dedicated to pursuing justice for accident victims in Austin and across Texas. Review our free guides, answers to frequently asked questions and helpful videos. Discuss your situation and your options with us and learn the difference we can make in your case. Review our free guide Win Your Texas Injury Case and read the client testimonials on our web site and let us show you how we can protect your rights and help put you on the road to recovery. Learn how we can help recover damages for your injuries and learn how to avoid common mistakes that can compromise your case. If you have been injured by a negligent driver, contact us today for a free, fast case evaluation.
Todd Law Firm: Making a Difference, One Family at a Time.
We donate a portion of every child injury recovery to charities focused on protecting children from harm and healing injured kids. We are proud supporters of Dell Children's Medical Center, The Center for Child Protection, and Hope4Minds.