Disclaimer. This book is educational information only. This is not legal advice.

Transcription

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2 Disclaimer This book is educational information only. This is not legal advice. ANY CASE RESULTS INCLUDED IN THIS BOOK ARE BASED ON THE SPECIFIC FACTS OF THOSE CASES. PAST RESULTS DO NOT PREDICT FUTURE SUCCESS. Copyright 2015 Sutliff & Stout, PLLC All Rights Reserved 550 Post Oak Blvd #530 Houston, TX MyHoustonInjuryAttorneys.com 1

3 Praise from Past Clients I was in a terrible car wreck, one that could have ruined me considering today s economy. After searching far and wide, I finally found Sutliff & Stout. Their character and high morals were exemplified in my legal representation against huge power company. Through their expertise, I received proper medical care plus the money I needed to pay for future medical treatment and secure my financial future. - Judy J. When I met Hank and Graham of Sutliff & Stout, I felt like I was talking to old friends. We met, discussed my case and they were off and running. After promptly filing a lawsuit on my behalf, they even helped find a good doctor for me. Sutliff & Stout were very interested in getting the justice I deserved. They were also very attentive to any questions or theories I had. - Danny H. Having never been in a car accident before, I assumed the insurance company for the 18- wheeler would take care of everything, and do so honestly. I was wrong. The insurance company refused to help me with my medical bills and wouldn t treat me fairly. That s when I contacted Sutliff & Stout. Thankfully, they stepped into the picture and made sure that I was treated fairly and with respect. These guys are tireless and fierce advocates for their clients. Sutliff & Stout provided clear explanations at every step, outlined my options, and carried out any decision I made. I was very fortunate to have found this firm. - Shannon H 2

4 Contents Introduction How to Report a Car Accident in Texas Key Information to Gather After a Car Accident Mistakes to Avoid Making After a Car Accident Texas Car Insurance Requirements Tips for Contacting Your Insurance Company After a Car Accident Are You Being Offered a Fair Settlement? How to Negotiate a Fair Car Accident Settlement Signs That You Should Talk to an Attorney Texas Car Accident Statute of Limitations The Car Accident Lawsuit Process Bad Faith Insurance Tactics in Car Accident Claims

5 Introduction If you re reading this book, you ve likely been involved in an auto accident in Texas. Let us first say that we are sorry this happened. We understand how difficult this time can be. You likely have many questions. The purpose of this guide is to help answer some of those questions, and ensure that you make the right decisions as you move forward from your accident. If your accident was serious, resulting in major injuries to yourself or a loved one, we suggest that you speak with an attorney from our firm. The initial consultation is 100% free and there is no obligation. By telling us about your accident, we ll be able to tell you whether it s in your best interest to hire an attorney, even if you don t choose to work with us. If you were involved in a minor accident without serious injuries or damages, we suggest that your grab a cup of coffee and read through this guide so that you can understand the right steps to take, and the situations to beware of. 4

6 1. How to Report a Car Accident in Texas If you have been involved in a car accident, you should notify the authorities about your accident right away. Many people mistakenly believe that you do not need to report a car accident if nobody was injured, but this is not the case. You should always report a car accident to law enforcement. This page will provide information about how to report a car accident in Texas. We ve also provided a printer-friendly quick reference guide to keep in your car: [DOWNLOAD THE QUICK REFERENCE GUIDE] After a Car Accident, Call 911 After any car accident, regardless of how serious, you should call 911. A police officer or other law enforcement officer will be dispatched to the scene of your accident. He or she will prepare a police report (sometimes called an accident report or incident report ) that contains important details about your accident. 5

7 The police report may discuss whether any laws were broken, who was at fault for the accident, and whether the drivers involved were wearing seatbelts at the time of the accident. It will also include other information, such as the location where the accident occurred, what conditions were present, and the names of all drivers involved. A police report can be crucial to establishing fault during the insurance claims process or in a personal injury lawsuit. Houston Police Department Non- Emergency Number If you did not call 911 from the scene of your car accident, you should call the non-emergency police number to report your accident as soon as possible. You can speak with a member of the Houston Police Department and explain what happened. Be sure to give the police as much information as possible about the accident. To reach the Houston Police Department s nonemergency line, call (713) You can also visit their website for more information. How to Obtain a Texas Crash Report 6

8 The Texas Department of Transportation (or TxDOT ) maintains an archive of all crash records for the State of Texas. Texas law requires any law enforcement officer who, in the regular course of duty, investigates a car accident that results in injury to or death of a person or damage to property in excess of $1,000 or more, to submit a written report to TxDOT no more than 10 days after the date of the crash. See Texas Transportation Code TxDOT collects crash reports from every law enforcement agency in Texas. TxDOT maintains records about car accidents that occur on any public roadway in Texas, not just those that occur on the state highway system. If you were involved in a car accident and a law enforcement officer filed a report about your accident, you can obtain a copy of the report through the Crash Reports and Records section of the TxDOT website. To obtain the report, you will need to provide at least two of the following pieces of information: Name of any person involved in the crash, Date of the crash, and/or Location of the crash. 7

9 The costs for a copy of a crash report are as follows: $6.00 for a regular copy. $8.00 for a certified copy. A certified copy will be required for most legal proceedings. You can also obtain a crash report over the phone or by mail. 8

10 2. Key Information to Gather After a Car Accident After a car accident, there are certain records and key pieces of evidence you must gather in order to bring a successful insurance claim or personal injury lawsuit. The success of your claim or lawsuit will hinge on whether you have documentation to support the assertions you make. For example, you are much more likely to be compensated for your medical expenses during settlement negotiations if you have a file containing copies of all your medical records organized in chronological order, and billing information showing how much you were charged for that treatment. If you file a personal injury lawsuit, a police report can be critical in establishing who was at fault in the accident. Here are the top 5 pieces of info to gather, prepare, and organize after a car accident. *To help make this process easier for you, we ve created a car accident worksheet. 1. Police Report 9

11 After a car accident, you should call 911 immediately. This is true regardless of how serious the accident was. A police officer will come to the scene of your accident and prepare a police report, either at the scene or shortly afterward. This is sometimes referred to as an incident report or accident report. This report will likely include information that is crucial to an insurance claim or personal injury lawsuit including determinations as to whether any traffic laws were violated, potential causes of the accident, statements from those involved in the accident as to the circumstances of the accident, and statements from witnesses about what they saw and heard at the time of the accident. To get a copy of the police report that contains information about your car accident, contact the law enforcement agency that came to the scene. They will likely ask you for the following information: The date and location of the accident (i.e., the intersection or approximate street address where it occurred), The names of the drivers involved in the accident, and/or 10

12 The name and badge number of the officer who came to the scene and prepared the report. If you are unable to locate a police report, incident report, or accident report, an experienced car accident attorney may be able to help. 2. Medical Records If you suffered any injuries in your accident, or even if you just got checked out for precautionary reasons, be sure to get copies of all your medical records and billing information related to your treatment. You should ask for copies of your records from every healthcare provider you see. Make sure that you have every phase of your healthcare accounted for including treatment received, any diagnoses given, treatments recommended by your doctors, medications that were prescribed to you, and any other opinions or conclusions offered by a healthcare provider. Keep a dedicated file for your medical records, and organize them in chronological order. You may need to locate and request medical records for: 11

13 Emergency medical services, such as an ambulance ride or treatment given at the scene of the accident. Typically, ambulances and paramedics are affiliated with the town, city, or county where your car accident occurred. However, you may have been treated or transported by a private company. Services rendered in an emergency room, such as X-rays, stitches, or surgery. Hospital admission. Be sure to ask for the treating physician s records. Treatment provided by your primary care physician. Prescriptions you picked up at a pharmacy. Physical therapy. Chiropractic care. Psychological treatment. Treatment by any other health care providers or specialists. Keeping a detailed account of your medical records as they are generated can save you time and money. 3. Records Related to Your Job If you missed any time at work due to your car accident, you may be entitled to compensation 12

14 for the income you lost. If you file a personal injury lawsuit, you ll need to show detailed proof of your lost income. You can do this by gathering paycheck stubs, direct deposit records, records of any tips you received, or any other documents from your employer that show the amount of income you missed out on due to the time you missed after your car accident. You should also keep copies of any correspondence with your employer related to your absence from work. If your earning potential has been permanently decreased as a result of the injuries you suffered, you may be able to recover money to compensate you for the income you will lose over time. If this is the case, it will be especially important to keep records related to your job. 4. Vehicle Damage Estimates and Proof of Vehicle Value If your vehicle was damaged in your car accident, you will likely be able to recoup repair costs through an insurance company or by filing a lawsuit against the driver or drivers responsible for the accident. In order to calculate the amount of money to ask for, you must know how much repairing your vehicle will cost. In some cases, 13

15 this might be the actual cash value of your car just before the accident happened. Some insurance companies handle the damage estimate side of things. In other cases, you might be able to get multiple repair estimates from various auto mechanics and body shops. If your vehicle was totaled or damaged beyond repair, use a reputable resource such as Kelley Blue Book to determine the fair market value of your vehicle right before the accident occurred. 5. Car Accident Diary or Journal You should keep a detailed chronological record similar to a diary or journal after a car accident. Write down your own statement about the car accident immediately after it occurred. Take notes on any communication you have with insurance companies or the parties involved in the accident. If you were injured in your car accident, write down how you are feeling day by day. Make a note of any medical appointments you have, and treatment you are receiving. Keep a log of missed workdays. A car accident diary or journal can help a court determine how much money you should receive for the pain and suffering you endured. It can 14

16 also help your lawyer better understand what happened during and after your accident. 15

17 3. Mistakes to Avoid Making after a Car Accident A car accident can be an overwhelming experience. There are certain steps you should take after a car accident, such as contacting your insurance company and seeking prompt medical treatment. But there are other things you should avoid doing after a car accident. This section discusses some important car accident don ts. After a car accident, avoid these common missteps to protect yourself and your legal rights. 1. Leave the scene. Texas law requires anyone who has been in a car accident involving injury to a person, death, or property damage to immediately stop their vehicle. If you fail to do this and leave the scene of a car accident, you could be charged with a crime. See Texas Penal Code You should never leave the scene of a car accident. Call 911, and wait until police officers arrive to take a police report. If anyone needs medical assistance, police will dispatch emergency medical personnel to the scene of the car accident. 16

18 2. Forget to call 911. Some people mistakenly believe that it is okay not to call 911 if nobody is hurt in a car accident. This is simply not true. If you have been involved in a car accident, regardless of how serious the accident was, call 911. A police report can be crucial to establishing who was at fault for the accident in a subsequent lawsuit. A police report will include critical information about the car accident, including road conditions, names and contact information of witnesses, and an official write-up of how the accident occurred. 3. Lose your cool. A car accident can be a very upsetting experience. After a car accident, your emotions are likely running high. Do not lose your cool and become angry or upset with the other parties involved, even if the accident was their fault. Try to remain calm and see to it that everyone who was involved in the car accident gets the help they need. 4. Forget to document the car accident. 17

19 Before leaving the scene of a car accident, you should take down as much information about the accident as possible. If you have a camera available, take pictures of the scene of the accident. Take down the names and contact information of all of the parties involved in the accident, as well as information about their insurance providers. If there were witnesses to the accident, ask them to write down a short statement about what they saw. Ask for their names and contact information. You should also take down details about the time and date the accident occurred, as well as conditions (such as rain or snow) that were present. Record license plate numbers and other important information. If you forget to document a car accident, it can be difficult to prove what happened in court should you or another party file a lawsuit. Your insurance provider will also want to know this information. 5. Admit fault. You should not admit fault at the scene of a car accident or in conversation with an insurance provider afterwards. Be honest about what 18

20 happened, but avoid saying things like, It was all my fault. These types of statements can be used against you later by insurance companies, which will likely try to avoid paying for damage caused in the accident, or by the other parties involved in the accident, who may file a lawsuit against you. 6. Neglect the aftermath. Being involved in a car accident is difficult enough, but the hard part often comes afterwards. You may have to seek medical treatment if you were hurt. You will need to contact your insurance provider, and may have to field calls from the insurance providers of the other parties involved. You may even be served with legal papers. If you neglect to follow up on these sometimes pesky tasks, things will only get worse. An experienced car accident lawyer can help you deal with the consequences and aftermath of a car accident. 7. Speak to the other party s insurance company without a lawyer. 19

21 Insurance companies will try to get you to settle your claims for as little as possible. It is risky to speak with the other party s insurance company without a lawyer. They will ask you to record a statement about what happened in the accident and may try to use your statements against you during the claims settlement process or in a subsequent lawsuit. A lawyer with experience handling car accident lawsuits can communicate directly with insurance company representatives on your behalf. 8. Enter into an unfair settlement agreement. If you believe that an insurance company is trying to lowball you during the claims settlement process, do not enter into a settlement agreement. A car accident lawyer can help you better understand whether the settlement you are being offered is fair. A settlement offer may also arise in the context of a lawsuit. Do not enter into settlement negotiations, which are complicated legal discussions, without the assistance of a car accident lawyer. 9. File a lawsuit on your own. 20

22 You may be tempted to file a lawsuit after a car accident on your own, also known as pro se. But this can be a risky decision, and end up costing you money in the long run. It might also result in having your suit dismissed. Most lawsuits that are brought after a car accident involve complicated legal claims. A lawyer can help you understand the legal process and will represent your interests in court. 10. Decline to hire a lawyer. If you were involved in an accident where anyone was injured or serious property damage occurred, you should hire a lawyer. 21

23 4. Texas Car Insurance Requirements Texas law requires people who drive in the state to pay for the accidents they cause. The majority of Texas drivers comply with this requirement by purchasing auto liability insurance. Texas financial responsibility law specifies minimum insurance coverage amounts for Texas drivers. Texas Automobile Insurance Minimums Texas law sets forth minimum coverage amounts for automobile insurance. The basic coverage is sometimes called 30/60/25 coverage, and requires: $30,000 for each injured person, $60,000 total per accident, and $25,000 for property damage per accident A car accident can cause significant damage to property, as well as serious injuries or even death. Because of the expense associated with repairing vehicles and the high costs of medical care, these minimum amounts may not cover the costs of a car accident. If you were involved in a car accident with a driver who was uninsured or underinsured, you 22

24 should speak with a car accident lawyer right away to discuss your rights. Car accidents involving uninsured or underinsured drivers often result in complicated legal proceedings. Filing a lawsuit against the driver may be the only way to secure the funds necessary to repair your vehicle and pay for your medical expenses. Proof of Financial Responsibility Insurance companies provide policyholders with a proof-of-insurance card. Drivers must show a current card when they are: Asked for it by a police officer, Are involved in an accident, Register a car or renew its registration, Get or renew a driver s license, or Have their car inspected. If you are involved in an accident, you should ask the other driver for his or her insurance information and write down this information before leaving the scene of the accident. Always call 911 after a car accident, regardless of how serious the accident was. Penalties for Violating Texas Insurance Law 23

25 The penalties for violating Texas financial responsibility laws are as follows: First offense: fine of $175 to $350 Additional offenses: fine of $350 to $1,000, suspension of your driver s license, and impoundment of your car Offense without a driver s license: $2,000 maximum fine, 180 days in jail, or both Offense if you cause an accident with serious injuries or death: $4,000 maximum fine, one year in jail, or both 24

26 5. Tips for Contacting Your Insurance Company after a Car Accident After a car accident, it can be hard to know what steps to take and where to turn for help. One thing you must do is contact your insurance company to report your accident. This page will discuss when to contact your insurance company after a car accident, as well as what to say and what not to say when you do. When to Contact Your Insurance Company after a Car Accident You should report your car accident to your insurance company right away. It is important to do so as soon as possible so that you can accurately recall details about your accident and report any injuries or property damage that may have occurred. Reporting your accident in a timely manner will get the claims process started, and this can help you get car repairs and other services, including medical care, that you may need. Most car insurance companies allow you to report a claim online or via a toll-free number. 25

27 One common myth is that you do not need to contact your insurance company if you were not at fault. Regardless of whether or not you were at fault in an accident, you should contact your insurance agent to report it. You will not be able to use your insurance coverage until you do. To help ensure that your insurance claim is processed properly, it may help to have the following information ready before you contact your insurance company: The name of the other driver and his or her address, phone number, and driver s license number; The name other driver s insurance company and contact information for the insurance company; A description of the other driver s car, including the license plate number, make, and model; and Details about the accident, including where it took place and when it occurred. Contact information for your insurance company can be found on your insurance card or other proof of insurance. 26

28 What to Say to Your Insurance Company after a Car Accident Although it is important to notify your insurance company of your car accident, you should be careful about what you say. In making the initial report about an accident, tell your insurance company the date, time, and location of the accident. You should also give them the names and addresses of all parties involved. Tell the truth; you should never lie to your insurance company about what happened. It is important to understand that you should not make a recorded statement or discuss the issue of fault until you have consulted with a car accident attorney. Respectfully decline any requests to give a recorded statement, and do not answer any questions about who was at fault. You should also wait to contact the other driver s insurance company until you have spoken to a car accident lawyer. If another insurance company calls you, politely tell them that you will return their call after you ve had an opportunity to talk to an attorney. 27

29 6. Are You Being Offered a Fair Settlement? After a car accident, insurance companies will try to pay you as little as possible for your injuries and damage to your vehicle. Many people mistakenly believe that they can negotiate a fair settlement with their insurance company, or that of the other driver, following a serious crash. If you are not represented by a lawyer, you risk being offered an unfair settlement by the insurance companies involved in the claims resulting from your car accident. Here are some signs that you are being offered an unfair settlement, and should seek advice from a car accident lawyer. The settlement doesn t cover your medical expenses. If a proposed settlement does not cover the medical expenses you incurred after a car accident, you are not being offered a fair settlement. You should never accept an insurance settlement that doesn t cover the cost of your emergency medical care, visits to doctors, prescription medications, physical therapy sessions, and other medical care. 28

30 It is important to keep detailed records of your medical care after an accident. Maintain a dedicated file with copies of all your medical records and associated bills organized chronologically. You will have a much better chance at getting a fair settlement if you have documentation of your expenses. If your insurance company, or that of the other driver, is unwilling to cover your medical expenses, talk to a lawyer right away. An experienced car accident attorney can help you file a lawsuit against the other driver or insurance companies that are acting in bad faith. You are being assigned too much fault for the accident. During the insurance claim settlement process, insurance companies typically assign a percentage of fault to each of the drivers involved in a car accident. If an insurance company assigns you too high a percentage of fault, your settlement offer may be reduced significantly. A police report can be critical in establishing fault in a car accident. If the police report indicates that you were not at fault in your accident, but 29

31 the insurance companies are arguing otherwise, contact a car accident lawyer right away. The settlement doesn t cover repairs to your vehicle. If an insurance company has offered you a settlement that doesn t cover the cost of repairing your vehicle after an accident, you should consult with a car accident lawyer to discuss your rights. If both drivers involved in your accident were insured, you should be able to recoup the costs of repairing your vehicle. There are other clues that your insurance company, or that of the other driver, may be acting unfairly. These include being denied a rental car or compensation for a rental car, being given conflicting reports about the amount of damage to your car, and having your claims for repair costs denied without reason. The insurance company is making threats or acting in bad faith. All insurance companies have a duty to act in good faith when dealing with policyholders and people who were involved in accidents with their policyholders. If your insurance company, or that of the other driver, has acted in bad faith during 30

32 the settlement process, you are unlikely to receive a fair settlement. An insurance company may be acting in bad faith if it: Threatens you during the settlement negotiation process, Denies your claims without giving a reason, Refuses your requests for documentation in support of its decisions, Makes unreasonably burdensome requests for documentation, Gives you a lowball settlement offer, or Fails to conduct a prompt and reasonable investigation into your claims. If an insurance company has acted in bad faith after your car accident, you may be able to sue the insurance company. Contact a lawyer to discuss your rights. 31

33 7. How to Negotiate a Fair Car Accident Settlement Dealing with the aftermath of a car accident can be difficult, especially if you were injured in the accident. Insurance companies may try to avoid paying for the costs associated with your injuries and damage to your vehicle. If the prospect of negotiating with your insurance company or that of the other driver is overwhelming, or an insurance company has refused to pay you a fair settlement, an experienced car accident lawyer may be able to help you navigate the claim negotiation and settlement process. Regardless of whether you hire a car accident attorney, these tips can help you negotiate the best possible insurance settlement after a car accident. Settlement Negotiation Tips Even if you ve never negotiated with an insurance company before, it s possible to obtain a settlement that takes into account all of your injuries, the pain and suffering you endured, and other losses like damage to your car and unearned wages. Settlement negotiations aren t much different from other types of negotiations. Representatives of the insurance company must protect the company s interest in maintaining a 32

34 profit, and will therefore try to pay you as little as possible for your claim. These tips can help you secure a favorable settlement with an insurance company if you were injured in a car accident. 1. Initiate a Claim as Soon as Possible After a Car Accident After a car accident, you should contact your insurance company right away. It is important to initiate a claim as soon as possible after a car accident so that you can recall details about your accident accurately and report any injuries or property damage that occurred. For more information on when to contact your insurance company after a car accident and what you should say, read our guide to contacting your insurance company after a car accident. 2. Keep Accurate Records about the Accident You should keep a file of records about your car accident that is organized chronologically. This file should include a police report if one exists, records of doctors visits, bills for car repairs, and anything else relevant to your accident. You will rely on these documents often during negotiations, and having them readily available can help expedite the settlement process. 3. Calculate a Fair Settlement 33

35 Before you send a demand letter to your insurance company, you must determine what you believe your claim is worth. When arriving at a figure, you should take into account all of the following: The cost of your medical care and related expenses, The amount of income you lost as a result of your injuries if you were unable to work, Whether you are permanently disabled or will require long-term medical care, Any pain and suffering you endured after the accident, and The cost of repairing or replacing your vehicle and any other property that was damaged in the accident. Based on this information, decide on a minimum settlement figure that you will accept. If you cannot determine what a fair insurance settlement is, a car accident attorney may be able to help. 4. Send a Detailed Demand Letter to the Insurance Company After you calculate what you think your claim is worth, send a demand letter to the insurance company. Describe the car accident, your injuries, the medical treatment you received, any ongoing health issues you have, how badly your vehicle was damaged, and any other losses you incurred as a result of the car accident. Then, tell the insurance company how much money you 34

36 demand as a result of the circumstances. Because the insurance company will likely reply with an offer for an amount lower than what you ve asked for in the demand letter, you should ask for between 25 and 100 percent more than what you would be willing to settle for. It is important to remember that you must have evidence and documentation to back up everything in your demand letter. A lack of evidence can prevent you from getting the offer you deserve. 5. Do Not Accept the First Offer When the insurance adjuster makes an initial offer, it may be too low. A first offer that is unreasonably low might be a tactic by the insurance company to see if you know what your claim is really worth. Ask the insurance adjuster to justify his or her low offer and give you specific reasons why your claim is so low. Respond to each of the points he or she makes in a reply letter explaining why you cannot accept the offer. Do not propose a lower figure wait to see if the insurance company will increase its offer. If the first offer is reasonable but still too low, you may want to counter with a somewhat lower amount than you asked for in your demand letter. If you make a reasonable counteroffer, the insurance company will be more willing to compromise. 35

37 6. Emphasize the Points in Your Favor When communicating with the insurance company, emphasize the strongest points in your favor. Do not waste time going over undisputed facts, and focus on what s most important to you. If you suffered an injury that will require lifelong medical care, discuss how this will affect your quality of life and finances over time. If you missed a significant amount of work, reiterate the total amount of wages you lost and how missing work impacted your family. Make it clear to the insurance company that you must be compensated fairly for your injuries and other losses. 7. Get Everything in Writing You should take detailed notes about all of your conversations with the insurance company. Ask that all settlement offers be presented in writing. If you reach an agreement, make sure that it is memorialized in a dated written contract that is signed by all parties to the agreement. 8. Know When to Hire an Attorney If you cannot arrive at a fair settlement agreement after negotiating with an insurance company, you may need to hire a lawyer. An experienced car accident lawyer can help you evaluate your situation and determine whether a personal injury lawsuit is necessary. 36

38 8. Signs That You Should Talk to an Attorney For most fender benders and minor car accidents, you probably won t need to hire a lawyer. Typically, the damage from these types of accidents can be resolved through insurance companies, and most traffic tickets do not warrant hiring a lawyer. But when you ve been involved in a more serious car accident, you may need to hire an experienced car accident attorney. After a car accident, an attorney can help you recover money for damage to your car, secure funds for costly medical treatment, and collect evidence to show that you were not at fault in the accident. An attorney can also communicate directly with insurance company representatives on your behalf. 5 Signs You May Need to Hire a Car Accident Lawyer Here are some scenarios that should lead you to search for a car accident attorney. Hiring a lawyer is an important decision, and you should find a lawyer with whom you feel comfortable working and communicating. 37

39 1. The car accident caused serious injury or death If the automobile accident caused serious injury or death, you should consider hiring a lawyer. Car accidents in which serious bodily injuries or deaths occur are highly traumatic for all parties involved. They usually result in a complicated lawsuit or lawsuits. A court will have to consider multiple legal issues, and the amount of damages will likely be very high. You will need an attorney to help calculate the amount of damages you deserve, guide you through the legal process, and represent you against possible counterclaims. You should look for a reputable car accident lawyer who has experience handling personal injury or wrongful death cases. 2. There were multiple parties involved in the accident If you were in an accident involving multiple drivers and vehicles, you may need to hire a lawyer. Many car accidents involve multiple vehicles or other parties such as pedestrians. For example, the driver of a commercial delivery truck may fail to stop at a red light and enter an intersection illegally. A driver of a passenger 38

40 vehicle may swerve to avoid the delivery truck in the intersection and hit a motorcycle in the adjoining lane. This type of multi-vehicle accident would likely result in a complicated lawsuit or even multiple lawsuits. A car accident lawyer will fight to keep your share of liability for the damages incurred by the other parties involved in the accident as low as possible. An attorney can also help communicate with the lawyers for the other parties and their insurance companies. 3. One or more parties involved in the car accident are uninsured If one or more of the parties involved in your car accident do not have insurance, you should begin to search for a car accident attorney right away. Most auto insurance companies offer uninsured motorist coverage, but it might not be enough to cover the damages. A lawyer can help you file a civil lawsuit for money damages against the uninsured party. 4. You need to collect evidence about the car accident If you need to collect evidence about your car accident, you may need to hire a lawyer. For 39

41 example, most new vehicles are equipped with a piece of recording technology known as a black box that records critical information during a car accident. This information may be able to establish how fast the car was going at the time the car accident occurred, or whether the driver was wearing a seatbelt. You will need to get a court order for this data, and a lawyer can help you request one. 5. You have upcoming settlement talks Many car accident lawsuits settle before going to trial. Settling a lawsuit before trial can save you a lot of money in litigation costs. But you need to understand that settlement talks often involve complicated legal negotiation. A car accident lawyer can probably negotiate a much higher settlement than you. You should hire a lawyer who has experience negotiating favorable settlement agreements for clients who have been involved in a car accident. Don t be afraid to ask your lawyer to see past results. 40

42 9. Texas Car Accident Statute of Limitations Generally, the statute of limitations that applies to car accident lawsuits in Texas is two (2) years. In almost all lawsuits, a procedural rule known as a statute of limitations applies. A statute of limitations is a law that prevents people from bringing a lawsuit after a certain period of time has passed. If you file a lawsuit after the statute of limitations applicable to one of your claims has run, you might be barred from having that claim heard by a court of law. This is true regardless of how strong your case is. Many people who have been involved in a car accident in Texas come to us with questions about how the statute of limitations might affect their case. This page contains some basic information about statutes of limitations in Texas, and is not intended to be legal advice. An experienced car accident attorney can help you better understand how these rules will impact your car accident lawsuit. We have tried to answer some of the most frequently asked questions about statutes of limitations here. The statutes of limitations for car accident and personal injury lawsuits in Texas will be discussed more fully below. What is a Statute of Limitations? 41

43 A statute of limitations is a rule applied by the courts that involves the timing of a lawsuit. You only have a certain period of time to bring a lawsuit after an accident or injury gives rise to what is known as a cause of action. To many people, statutes of limitations seem unfair or harsh. Typically, these rules are applied strictly by Texas courts. A statute of limitations can prevent your lawsuit from being heard even if it is very strong or compelling. You only have so much time after a car accident to bring a lawsuit against the people or parties responsible for your injuries. This is one of the many reasons why it is so important to contact a reputable car accident lawyer as quickly as possible after you are in an automobile accident. In Texas, different statutes of limitations apply to different types of claims. These rules will be discussed more thoroughly below. Why Do We Have Statutes of Limitations? Statutes of limitations have been used by courts for hundreds of years. One of the main reasons we have rules known as statutes of limitations is to protect defendants. These rules encourage plaintiffs (the people who file lawsuits) to pursue their lawsuit with reasonable diligence. Statutes of limitations also guarantee that important evidence will not be lost over time, and that witnesses who testify in court will be able to draw on recent, reliable memories. 42

44 As an example, a jury would have a hard time trusting witnesses called to testify about a car accident that occurred 15 years ago. Their memories of the accident might be fuzzy or even nonexistent. Moreover, someone who was involved in a car accident that occurred so long ago would not expect to be sued as a result of the accident. Finally, any evidence about the accident may have been lost or destroyed over the course of 15 years. Courts are unwilling, for public policy reasons, to hear lawsuits involving events that occurred a long time ago. How is the Statute of Limitations Calculated? Generally, the limitation period set forth in a statute of limitation begins to run (or toll ) when the event upon which a lawsuit is based occurs. For example, if you were in a car accident in Houston on October 25, 2013, you would probably have two years from the date of that car accident to file a lawsuit (until October 25, 2015). It is important to understand that your case does not need to be tried by a court or heard by a jury in that time period. The statute of limitations requires only that you file a lawsuit within the set period of time. Sometimes, you may not know that you are injured after a car accident until long after the accident occurred. Certain injuries, particularly 43

45 neck and back injuries, might take time to discover and become significantly worse over time. If this is the case, you may have two years from the date upon which you should have reasonably discovered your injury to file a lawsuit. In some cases, it is very easy to calculate when the limitation period for a particular claim will expire. The statute of limitations applicable to most claims for property damage in Texas is two years. If you are in a car accident, your car and other property was damaged on the date the accident happened. As discussed above, it can be difficult to calculate when the limitation period for certain types of injuries expires. An experienced personal injury lawyer can help you understand whether you have extra time to file a lawsuit, and may be able to argue that your claims are still valid before the court. The statute of limitations is often a significant legal issue in delayed discovery cases. What is the Statute of Limitations in Texas for a Car Accident Case? The following statutes of limitations apply to most car accident lawsuits in Texas. As discussed above, it may be difficult to understand exactly when the limitation period applicable to your claim began. This is referred to as when a cause of actions accrues in the Texas Civil Practice & Remedies Code. 44

46 PERSONAL INJURY. Generally, claims for personal injury must be brought within two years of the date the cause of action accrues. See Tex. Civ. Prac. & Rem. Code PROPERTY DAMAGE. Generally, claims for property damage must be brought within two years of the date the cause of action accrues. See Tex. Civ. Prac. & Rem. Code WRONGFUL DEATH. Generally, claims for wrongful death must be brought within two years of the date of the death of the injured person. See Tex. Civ. Prac. & Rem. Code

47 10. The Car Accident Lawsuit Process If you were hurt in a car accident, understanding what s involved in a personal injury lawsuit can help you determine whether filing a lawsuit is the right decision for you. This section will discuss the stages of a personal injury lawsuit, from meeting with an attorney to collecting money after a judgment in your favor. Meeting with an Attorney The first step in a personal injury lawsuit after a car accident is meeting with an attorney. You should do your research before meeting with a lawyer, and make sure he or she is someone you would feel comfortable working with. An initial meeting gives the attorney a chance to ask you for information about your case, and it is also an opportunity for you to decide if you want to hire him or her. During your first meeting, the attorney will likely ask you questions about yourself and for details about your car accident. The attorney will want to know whether you or anyone else was hurt in the accident and if so, how badly. He or she will ask about any property damage that occurred. 46

48 The attorney may also ask you questions about insurance coverage and your medical history. The attorney will discuss practical aspects of your case, such as how much he or she charges, what costs you will incur as the client, and what you can expect during the personal injury lawsuit process. If you decide to hire the attorney, he or she may ask you to sign a representation agreement and/or a fee agreement. Filing a Lawsuit: Initial Court Papers The next step in the personal injury lawsuit process is filing the papers with the court to initiate a lawsuit. Personal injury lawsuits are filed in civil courts. Your lawyer will decide whether to file your lawsuit in Texas state court or federal court. As the party who files the complaint, you are the plaintiff in the lawsuit. Your lawyer will file a document with the court known as a complaint, which contains facts about what happened in your car accident and the legal claims you are making. The complaint also states how much money you are seeking in the lawsuit. The party or parties that you are suing (called defendants ) will have an opportunity to 47

49 respond to the complaint in a document known as an answer. In the answer, the defendants will assert any applicable defenses to your legal claims, and may include counterclaims or crossclaims. In a counterclaim or cross-claim, the defendant brings a legal claim against you, the plaintiff. Fact-Finding and Discovery After the complaint and answer have been filed in the court, a process known as discovery begins. During the discovery process, the parties to the lawsuit gather information and facts in preparation for trial. They may do so during filmed interviews of witnesses known as depositions. You and any other witnesses may also be asked to fill out written questionnaires called interrogatories. Each side can ask the other for documents, including medical records and proof of income. Resolution before Trial: Motions Before your personal injury case goes to trial, many important legal questions can be resolved by a motion or motions filed with the court. A motion is a formal request for the court to issue a desired ruling or order. Your lawyer can help 48

50 you understand whether filing a motion is right for your case. There are different types of motions. In a motion to dismiss, the defendant or defendants request that the court dispose of certain claims in your lawsuit, or your lawsuit in its entirety. You can request that the court dismiss any counterclaims filed against you. Either party to the lawsuit may file a motion for summary judgment. If a court grants a motion for summary judgment, the judge will rule on some or all claims without sending them to a trial. Resolution before Trial: Settlement Your case may also be resolved by settlement before it goes to trial. In a settlement, the parties agree to end the lawsuit based on a set of terms contained in a document known as a settlement agreement. The terms may be the subject of intense negotiations between the parties to the lawsuit. Most settlement agreements requires one party to pay the other a specific amount of money. The majority of personal injury cases settle before going to trial. This is one reason why it is important to hire a lawyer who has negotiated 49

51 favorable settlements on behalf of his or her clients. Trial: What Happens in Court? If your case does not settle, it will then go to trial. During the trial, either the judge or a jury will be responsible for deciding your case. Your lawyer can help you determine whether presenting your case to a jury offers you the best chance of winning your lawsuit. If you decide to request a jury, jurors will need to be selected prior to the start of trial. The trial will begin with opening arguments made by your lawyer. Your lawyer will present your theory of the case, and explain what you are seeking from the court (e.g., money to compensate you for your injuries). Then, the lawyer or lawyers for the other side will have a chance to respond. The next phase of the trial is the presentation of evidence. Witnesses will be called to the stand to testify about the facts at issue in your case. The lawyers for both sides will question and cross-examine the witnesses. Once all of the witnesses have been called, the lawyers will rest their case. 50

52 The lawyers for both sides will then deliver closing arguments. If your case is being decided by a jury, the judge will instruct the jury on what questions they must answer in delivering a verdict. The judge will dismiss the jurors and they will deliberate on your case. If your case is being heard by a judge, he or she will excuse the parties and their lawyers until he or she reaches a decision. Either the judge or the jury will then return a decision on your case. If the case is decided in your favor, you will be informed of how much money you are entitled to recover from the defendant or defendants. Collecting Money after a Judgment If the court enters a judgment in your favor, the next step is collecting the money to which you are entitled. Some defendants pay the judgment right away to avoid additional legal trouble. But sometimes, collecting money from the defendant or defendants can be difficult. Your lawyer may need to ask the court to garnish an individual s paycheck or put a lien on their property. If a defendant files for Chapter 7 bankruptcy, you may not be able to collect any money from them. Appealing a Decision or Judgment 51

53 If the court did not rule in your favor, you may want to consider appealing the court s decision or judgment. Appeals can take a lot of time and cost you money. You should discuss with your lawyer whether filing an appeal is appropriate in your case. 52

54 11. Bad Faith Insurance Tactics in Car Accident Claims Dealing with insurance companies after a car accident can be frustrating and difficult. If you believe that an insurance company is not negotiating your car accident claim in good faith, you may be entitled to take legal action against the insurance company. This page provides some basic information about bad faith insurance tactics in car accident claims. It is not a substitute for speaking to an attorney. Only a qualified car accident lawyer can give you legal advice. What is Insurance Bad Faith? All insurance companies are required to investigate, negotiate, and settle claims in good faith. This is due to a longstanding duty which automatically exists in every insurance contract known as the implied covenant of good faith and fair dealing. It requires the party or parties to a contract to treat each other honestly, fairly, and in good faith, so as to not prevent the other party or parties from receiving the benefits of the contract. 53

55 When insurance companies violate this duty, they can be held liable in court for their bad faith acts. All jurisdictions, including Texas, recognize the right of those harmed by bad faith insurance tactics to bring a claim against the insurance company for its bad faith tactics. These types of claims, which arise under tort law, are often referred to as bad faith insurance claims or bad faith insurance lawsuits. Examples of Bad Faith Insurance Tactics There are many different insurance company practices that constitute bad faith. Below are examples of bad faith insurance tactics, but this list is by no means exhaustive. 1. Denying a Claim without Giving a Reason When an insurance company denies a claim following a car accident, it should give a reason. If you made a valid claim to an insurance company after a car accident and it was denied for no reason or for an invalid reason, you may have a claim against the insurance company for bad faith. 2. Failing to Conduct an Adequate Investigation into a Claim 54

56 The duty of good faith and fair dealing requires insurance companies to conduct prompt and thorough investigations into car accident claims. If an insurance company has delayed its investigation into your claim or conducted a poor investigation, you may have a bad faith insurance claim. 3. Delaying Payment of a Valid Claim Insurance companies must pay on claims within a reasonable time frame. If an insurance company has approved your car accident claim, but has unreasonably delayed payment of the claim, you may have a claim against the insurance company for bad faith. 4. Offering Significantly Less Money than A Claim Is Worth During the claim negotiation process, insurance companies often propose low-ball settlements. But when an insurance company refuses to budge from a low-ball settlement offer, it may be acting in bad faith. If an insurance company offered you significantly less money for your claim than it is worth, you may have a claim for bad faith. 5. Refusing To Pay a Valid Claim 55

57 If an insurance company is refusing to settle or pay a valid claim after a car accident, it is likely acting in bad faith. If you filed a claim with an insurance company after a car accident that was clearly covered by your policy or that of the other driver and it was denied, the insurance company may be liable for its bad faith denial. 6. Making Threatening Statements Insurance companies should never threaten policyholders or third parties who make claims after a car accident. Insurance companies should treat policyholders and others in a respectful and professional manner. If an insurance company has made threats of any kind against you, contact an experienced car accident lawyer right away. 7. Misrepresenting the Law or Policy Language If an insurance company has intentionally misrepresented the law or language in the insurance policy applicable to your car accident claim, you may have a legal claim against the insurance company for bad faith. As part of the duty of good faith and fair dealing, insurance companies must be honest and truthful in their 56

58 statements about the law and the insurance policies involved in a claim. 8. Refusing Requests for Documentation Insurance companies should always comply with reasonable requests for documentation from policyholders and third parties. If you have asked an insurance company to provide documentation in support of its decisions and the insurance company refused to supply it, you may have a claim for bad faith. Proving Bad Faith in a Bad Faith Insurance Claim In order to establish that an insurance company acted in bad faith, you must show that the facts and circumstances surrounding the insurance company s actions indicate that the company acted in bad faith. Because the bad faith inquiry is focused on specific facts and circumstances and varies in each case, it can be very difficult to establish that an insurance company acted in bad faith. This is one of the many reasons why you should work with an experienced car accident lawyer after a car accident. It is important to understand that your claim against an insurance company that you believe 57

59 acted in bad faith is separate from that against the other driver who was responsible for your accident. A bad faith insurance lawyer can help you better understand how a bad faith insurance lawsuit differs from a car accident lawsuit filed against the at-fault driver. Damages in a Bad Faith Insurance Lawsuit The law on which types of compensation (also known as damages ) are available in a bad faith lawsuit varies by jurisdiction. Depending on the circumstances, you may be entitled to recover: What the insurance company should have paid out for your initial car accident claim; Damages that occurred as a result of the insurance company s bad faith denial of your car accident claim; Damages for the emotional distress caused by the insurance company s bad faith claim denial; and Punitive damages if you can prove that the insurance company acted intentionally or recklessly. 58