Can I Sue If I Am Partially At Fault in a Car Accident?

Monday, April 20, 2020

Many car accidents are not black and white. Even if you believe the other driver is 100% at fault for your collision, he or she might have a different opinion. It is common for the victim of a car accident to be at least partially to blame. The victim might have been speeding, for example, when another vehicle pulled out in front of him or her. This case could involve the shared liability of both the plaintiff and defendant in a car accident claim. In Texas, you can still bring a cause of action and obtain compensation when you are partially at fault for a car accident.

 Texas’ Modified Comparative Negligence Law

 Most states have transitioned from contributory to comparative negligence laws. In states that still abide by strict contributory negligence laws, even the smallest amount of fault on a plaintiff’s part will bar him or her from financial recovery. If you live in one of these states (Alabama, Maryland, Virginia, North Carolina and the District of Columbia) and are partially at fault in a car accident, you might be unable to sue. Speak to a Dallas car accident lawyer before assuming you do not have grounds for compensation, however.
 Luckily, Texas is a comparative negligence state. In Texas, you can still file a claim even if you contributed to the crash that injured you. Texas’ modified comparative negligence law – the law of proportionate responsibility (Texas Civil Practice and Remedies Code 33.001) – states that in an action with a claimant’s comparative fault, he or she may still be eligible for partial financial compensation. Under this law, you have the right to file an insurance claim or injury suit for damages even if you were at fault for the car accident.
 In a crash you contributed to, you could receive a reduced compensatory award. The courts will subtract an amount from your financial recovery that is equal to your percentage of comparative fault. Texas’ modified comparative negligence rule means the state caps the ability to recover damages at 50%. If the defendant can prove to a judge or jury that you were more than 50% at fault for the auto accident, you could lose all right to recover compensation. The defendant’s ability to prove your majority share of fault would result in $0 in a settlement or verdict for you in an auto accident claim.

 Does Insurance Pay If You’re Partially At Fault?

 On top of using a modified comparative negligence law, Texas is also a fault-based insurance state. After a car accident in a fault-based state, all victims will seek financial compensation from the insurance provider of the at-fault party. In a case involving comparative negligence, however, insurance rules can be difficult to maneuver. Bring your initial claim with the other driver’s insurance company. Start with a third-party claim for the best odds of maximizing your recovery award. Then, report the crash to your insurer as well.
 The other driver’s insurance company will investigate the crash to determine fault. Meanwhile, hire a car accident lawyer to investigate things for you. Your personal injury lawyer may find evidence that contrasts what the insurer finds. Your lawyer can also represent your rights and interests during insurance settlement negotiations, fighting against bad faith practices or allegations of comparative negligence. A lawyer can improve your odds of minimizing your percentage of fault and maximizing your financial recovery.
 In a crash you contributed to, you might seek recovery from your own insurance provider as well. In this case, you cannot recover the costs of pain and suffering. Your insurer may, however, pay for your medical bills and vehicle repairs. Since the other driver also contributed to the crash, you might be able to seek pain and suffering damages from his or her insurance provider. The rules of comparative negligence during an insurance claim or car accident lawsuit can be tricky to navigate. Contact an attorney for assistance filing your claim if you believe you are partially at fault for a car accident in Texas.

Posted by Aaron Herbert at 12:55 pm

What If I’m in an Accident Involving Minors?

Tuesday, April 14, 2020

Adults are not the only ones who make mistakes that injure others. Children and minors can also be guilty of negligence, recklessness, maliciousness and the wanton disregard for the safety of others. If a minor caused your accident in Texas, you may be able to hold him or her directly responsible. You might also have grounds to bring a case against the minor’s parents, depending on the situation.

What If I’m in an Accident Involving Minors? 1

Can You File a Case Against a Minor?

 Yes, you can file a case against a minor after an accident. Texas’ civil laws give you the right to bring a cause of action against any individual or entity that negligently, carelessly, recklessly or intentionally caused your accident. If a 16-year-old driver crashes into you while texting and driving, for example, you could file a case against the minor for your damages. Under Texas’ parental responsibility law, however, your case may technically go to the minor’s parents rather than the child himself or herself.

In a car accident case specifically, you can file a claim against the at-fault driver’s insurance company. For a minor driver, this will most likely be his or her parents’ insurer. When a minor drives a car, the insurance of the vehicle’s owner should cover damages related to an at-fault auto accident. You will go about your claim as you normally would with the vehicle owner’s insurance provider.

In some personal injury and property damage claims, you can file a lawsuit directly against the minor instead.

This might be possible if the parents do not have insurance that covers the minor, for example. You and your lawyer can go to court and request a legal judgment determining how much the minor owes you. Upon the minor turning 18, he or she will have to pay you what he or she owes. The legal process against a minor, however, can be long and complicated.

Parental Responsibility Laws in Texas

You might be able to file a claim against the parents of the child who caused your accident in some cases. The State of Texas passed a law holding parents civilly liable for the acts of their minor children in some situations. Texas Family Code 41.001 states that a parent or someone else with the duty of control and discipline over the child will be liable for any property damages the child causes, in certain circumstances.

  • The child was negligent in his or her conduct. This will be a valid reason to hold a parent vicariously liable if the child’s negligence traces back to the negligent failure of the parent or legal guardian. For example, if the parent negligently failed to supervise a child while using fireworks, and the child negligently sets fire to your property, the parent could be liable for the negligence of the child.
  • The child was willful or malicious in his or her conduct. If the child is at least 10 years old but under 18, and your lawyer can prove his or her actions in destroying your property were willful or malicious, the parents will be vicariously liable. This may take proving the child’s knowing intent to destroy your property. Your lawyer will not need to prove the parent or guardian’s negligence if you base your case on this grounds.

 If you pursue compensation through the willful or malicious intent route, the cap on the damages you could receive from the child’s parent or guardian is $25,000 per occurrence, plus reasonable attorney’s fees and court costs. Under the traditional principles of common law liability, a parent could still be vicariously liable for the actions of his or her child even if one of these two circumstances does not apply.

If a parent knows of a child’s propensity to destroy property, for instance, but does nothing to reasonably prevent an altercation, the parent may be liable for resultant damages. Hire a Dallas personal injury attorney to help you understand liability and parental responsibility after an accident involving minors in Texas.

Posted by Aaron Herbert at 11:45 am

What is a Letter of Protection?

Monday, April 13, 2020

After a serious accident, you might receive correspondence you do not want from many parties: insurance claims adjusters and bill collectors, namely. One type of communication you might receive is from your doctor’s office, reminding you about an outstanding unpaid bill. As the victim of an accident, however, you might be unable to pay your medical bills upfront. This should not interfere with obtaining the medical treatment you need for your injuries or disabilities. A letter of protection is a document that could help you receive medical care while you wait for a settlement.

What is a Letter of Protection? 3

How Do You Write a Letter of Protection?

 A letter of protection is a document your personal injury lawyer can draft that essentially says while you do not have the money right now to pay your doctor or hospital, you are in a court proceeding and will use the results of it to satisfy your medical debts. It is a letter assuring your health care provider that you will use part of any settlement or judgment award won during your personal injury case to pay off what you owe. If you have trouble finding a care provider that accepts letters of protection and medical liens, ask an attorney for assistance locating one.
 Sending a letter of protection can allow you to continue receiving the medical care you need without receiving constant letters or phone calls about your outstanding debt owed. It can also provide your doctor with peace of mind about the care already provided. A letter of protection is a legal notice your lawyer can draft for you. If you are the injured party, ask your personal injury attorney to send a letter of protection to your doctor on your behalf at the beginning of litigation.
 A letter of protection will include your name (the client’s name), any relevant dates and the medical procedure you received. It will give the name of the law firm and/or attorney and verify that the firm has taken your case and is currently pursuing compensation from the at-fault party. It should assure the recipient that if your lawyer succeeds in obtaining a cash settlement or a jury verdict at trial, you will repay any outstanding debts. It should be polite, succinct and to the point. It may also include the law firm’s contact information for any further questions or concerns.

 Is a Letter of Protection a Lien?

 An official letter of protection serves the same purpose as a medical lien. The two terms are interchangeable depending on the state. A lien is a legal claim one party has to the property of another party if the second party fails to repay a debt owed to the first party. A lien is a type of contract that gives one party the right to take the property of another in lieu of payment for an unpaid debt if the debtor does not pay within a certain amount of time. A letter of protection essentially serves the same purpose. It is a contract that assures a doctor that while you cannot pay upfront, you will pay when your case resolves and you receive payment from the defendant.
 Upon sending a physician a letter of protection, you will be under a legal obligation to give the medical provider his or her cut of any settlement or judgment award won in a lawsuit in the future. When working with an attorney, he or she can arrange a payment to your medical providers for you after obtaining a settlement, so you do not have to worry about this yourself. If your lawyer fails to obtain financial compensation for your damages, you will still owe a debt to the provider of your medical care. The health care provider will then have the right to pursue the full cost of the bill from you as it normally would, such as through bill collectors. A lawyer can help you with a letter of protection from the very beginning of the process.

Posted by Aaron Herbert at 12:12 pm

Texas Statute of Limitations

Sunday, April 12, 2020

One of the many laws you need to know as a claimant during a personal injury claim is the statute of limitations. This is one of the most important laws to know in Texas, as missing your statute of limitations could end your claim before it begins. The courts in Texas obey statutes of limitations strictly, often barring clients who file too late from obtaining any financial recovery. Speak to a Dallas personal injury lawyer for personalized information and advice about your statute of limitations.

Texas Statute of Limitations 5

What Is It?

 A statute of limitations is a type of law you will find in every state. It sets a time limit on filing a claim. Both criminal and civil cases have statutes of limitations. In the criminal courts, statutes of limitations set time limits by which prosecutors must bring charges against a defendant. These time limits vary depending on the alleged crime. In the civil courts, statutes of limitations limit how long an injury party (plaintiff) has to file a claim to damages against a defendant. Civil statutes of limitations vary according to the type of accident.
 Statutes of limitations help keep the justice system just. Without a law requiring plaintiffs to file their personal injury claims by a certain time, a plaintiff could feasibly wait as long as he or she wanted to file. This delaying of justice might not be fair for the defendant, who could lose opportunities to defend himself or herself with the loss of evidence over time. Enforcing statutes of limitations keep things moving through the justice system more efficiently by prompting claimants to file as soon as possible. It is important to know your statute of limitations in Texas if you wish to protect your right to bring a claim.

 How Long Is the Statute of Limitations in Texas?

 As a claimant in a personal injury case in Texas, your statute of limitations will be two years, in most cases. Texas Civil Practice & Remedies Code 16.003(a) gives this statute of limitations. With a few exceptions, a filing party has two years after the day of the accident or injury to bring a civil claim in the State of Texas. This is the same statute of limitations as with property damage claims in Texas. During a wrongful death claim in Texas, a plaintiff must bring a cause of action no later than two years after the date of the injured person’s death.
Some types of civil claims come with four-year deadlines in Texas. For example, a claim for financial losses due to a contract dispute can be brought within four years of the action or inaction that allegedly breached the contract. Breaches of fiduciary duty claims are also subject to a four-year deadline in Texas, as are most debt collection and fraud claims. Standard personal injury lawsuits, however, have two-year statutes of limitations, with some exceptions.
 It is important to ask an attorney what your statute of limitations is early on, so you do not accidentally miss your deadline. Some exceptions to the general rule exist; however, the courts will only toll, or extend, a statute of limitations in rare circumstances in Texas. If, for example, you did not discover your injury or illness until a date later than that of the accident, the clock generally will not start ticking until the date of discovery. Other exceptions exist for certain cases with minors (those under 18) and criminal offenses.

What Exceptions Are There to the Statute of Limitations in Texas?

The most common exception to the statute of limitations in Texas is the discovery rule. The discovery rule states that if a claim involves delayed symptoms, this can toll the deadline. If a victim did not discover his or her injury immediately, the clock will not start counting down until the date of injury diagnosis or discovery. If the defendant can prove that another reasonable and prudent plaintiff would have discovered the injury sooner, however, this could shorten the deadline. Common injuries with delayed symptoms include traumatic brain injuries and back injuries.
 Exceptions to Texas’ statute of limitations exist for claims arising from certain crimes, according to Section 16.0045 of the law. If the claim involves alleged child sexual assault, child sexual abuse, child sex trafficking, prostitution of a child, indecency with a child or other such sex crimes against children, the survivor will have 30 years from the date of the offense to file a civil claim.
Another exception to the general rule is in a case based on exposure to asbestos or silica. For asbestos-related injuries, a victim has two years from the date of the exposed victim’s death or the date the claimant serves on a defendant to file. This exception exists because asbestos exposure typically does not result in discoverable illnesses until years later.
Certain maritime claims (claims involving injuries on the water) also have unique statutes of limitations in Texas. The law provides three years to file from the date of an injury or death that occurs on navigable waters during maritime activity. Finally, the statute of limitations on a first-party insurance claim can range from two years to four years in Texas, depending on the language of the insurance contract.
There are also exceptions that can shorten, rather than extend, Texas’ statute of limitations. If you are bringing a tort claim against a government entity in Texas, for example, you will have less than two years to file paperwork. According to Section 101.101 of the Texas Tort Claims Act, a notice of this type of claim must be brought no later than six months from the date of the accident. If you are injured in an accident with a city bus, for example, you will only have six months to file your initial paperwork against the city government.

What Is the Statute of Limitations for Children in Texas?

There are also special statutes of limitations on personal injury claims that involve children in Texas. Child victims are not of the age of consent (18), and therefore do not have the mental capacity to bring legal claims in the eyes of the law. The law states that they are not mature enough to make legal decisions for themselves. This rule gives child victims two options when filing personal injury lawsuits:

  • A parent files within two years. A parent who wishes to file an injury claim on behalf of a minor child must do so by the ordinary statute of limitations in Texas – two years of the date of the accident. Either parent can file.
  • The child files within two years of turning 18. In Texas, the statute of limitations on a personal injury case is tolled until a minor reaches the age of majority. Thus, the deadline typically does not come until the victim’s 20th

Texas has a statute of repose that caps the right to file a medical malpractice claim at no more than 10 years from the date of the alleged act of malpractice, even with the discovery rule and a minor victim. This means if the minor was injured by medical malpractice, the claim must be brought within 10 years, even if this deadline comes before the plaintiff’s 20th birthday.

Contact a Personal Injury Lawyer Right Away

If you do not file your personal injury case before Texas’ statute of limitations, you could forfeit the right to obtain financial recovery, even if you have evidence of the defendant’s fault. It is critical not to wait to speak to an attorney. Waiting until the end of your window of time could mean accidentally missing the time limit.
Waiting to file can also reduce the strength of your evidence. For instance, eyewitnesses may not be able to clearly remember what they saw a year after the accident. Act quickly to contact a personal injury attorney and file your paperwork to protect your rights.
Statutes of limitations are complicated. The law in Texas can have exceptions in special circumstances. Always speak to a personal injury lawyer about your deadline to file as soon as possible after an accident in Texas.

Posted by Aaron Herbert at 2:25 pm

Is Brake Checking Illegal in Texas?

Friday, April 10, 2020

Brake checking occurs when one driver abruptly hits the brakes while another is following him or her too closely. It is a dangerous practice that can lead to a rear-end collision. Brake checking often goes hand-in-hand with aggressive or road rage driving. Drivers may become angry at the person who did the brake checking, leading to assaults or acts of violence on top of a car accident. As a driver in Texas, you should never brake check another vehicle. You could end up liable for an accident, and potentially end up in a personal injury lawsuit.

Is Brake Checking Illegal in Texas? 7

What Is the Point of Brake Checking?

A driver might be guilty of brake checking if he or she slams on the brakes without reason – such as without a red light or an obstacle causing the car to stop. Most drivers brake check to communicate to drivers behind them that they are following too closely. A driver may brake check as a warning, letting the other driver see that he or she may not be able to stop fast enough if following too closely. The goal is usually to force the following driver to allow for a greater distance.
Brake checking is an aggressive driving tactic that is not the standard procedure for these situations. If someone is tailgating you, calmly switch lanes to allow that driver to pass. Even if the following driver is speeding, tailgating, driving aggressively or otherwise in the wrong, do not put yourself at risk by brake checking the driver. Put your blinker on and move out of the other driver’s way when it is safe to do so. If you are on a two-lane road, try to ignore the driver until you can switch lanes. If you feel in danger, pull off to the side of the road someplace safe to let the driver pass.

Is Brake Checking Illegal in Texas?

Texas does not have a specific law in place that makes brake checking illegal. However, It does have laws requiring drivers to maintain safe following distances (Texas Transportation Code 545.062).
This law states that while following another vehicle, a driver must leave enough distance to ensure he or she can stop without colliding with the front vehicle.
Texas also has a law prohibiting reckless driving. Texas Transportation Code 545.401 makes it an offense to willfully or wantonly operate a vehicle with a disregard for the safety of others.
If you brake check someone and cause a car accident, the police can cite you for reckless driving.

Who Is at Fault for a Brake Checking Car Accident?

Fault matters in a car accident case in Texas. Like most states, Texas uses a traditional tort-based law to determine financial responsibility, or liability, for an auto accident. Before you can recover financial compensation from an insurance company, you or your car accident lawyer must determine and prove the other driver’s fault for the brake checking accident. Fault is a complicated concept in a brake checking wreck, as it presents a unique spin on a typical rear-end car accident case.
For the most part, the rear driver is responsible for a rear-end collision in Dallas. It is the rear driver’s responsibility to keep an adequate following distance, pay attention to the road and hit the brakes when other drivers reduce their speed. In a brake checking accident, the rear driver could face liability for the collision, as it was his or her duty to hit the brakes in time to avoid crashing into the back of the lead driver.
If, however, the act of brake checking was so abrupt or severe that a reasonable and prudent driver would not have been able to avoid a rear-end collision, the person doing the brake checking can face liability for the crash. Since brake checking is an example of reckless or road-rage or driving, the driver who committed the action might bear partial or full responsibility for a resultant rear-end collision. The driver who is ultimately at fault for a brake checking car accident will depend on the circumstances of the case.

 Can You Be At Fault for Brake Checking?

It is possible to be at fault for a rear-end collision caused by brake checking. Although a rear-end collision will be the fault of the following driver in most cases, if that driver can prove you abruptly slammed on your brakes for no reason, you might at least share liability for a crash. Texas is a modified comparative negligence state. If the other driver can prove you contributed to the car accident by brake checking, you might receive less money – or none at all – in an injury or property damage lawsuit. If the courts find you more than 50% at fault for brake checking, you will lose any right to hold the other driver liable.
Brake checking is unsafe. It can cause or contribute to a rear-end collision in Texas. You could receive a ticket for reckless driving if brake checking causes you or the driver following you to crash. You could also face liability for the wreck. If the other driver swerves out the way, for example, and collides into a guardrail, you could share fault for the accident – even if the other driver was following too closely. If a tailgater annoys you, switch lanes and let him or her go around. Write down the driver’s license plate number as he or she passes. Report reckless drivers to the nonemergency police number in your county.

What to Do If You’ve Been in a Brake Check Wreck

You can protect your legal rights after a brake check car accident by following through with certain actions. These actions allow you to document the crash, collect evidence against the other driver and protect your physical wellbeing. If you cannot complete all of these steps, don’t panic. Contact a personal injury lawyer in Dallas for assistance in the aftermath of a crash.
Steps to take after a brake check wreck include:

  1. Remain calm and don’t shout at the other driver. Brake checking accidents often involve road rage or driver disputes. Do your best to stay calm and discuss things rationally with the other driver.
  2. Call the police. Check yourself and people in the other vehicle for injuries. Call 911 to report the crash, even if it was minor. If anyone is injured, request an ambulance. When the police arrive, make sure they record your side of the story.
  3. Do not admit fault. Do not even engage the other driver in conversations about fault. Explain that neither of you has to admit fault right now; the police and your insurance companies will investigate the accident to determine fault.
  4. Collect as much information as you can. Exchange names and contact information with the other driver. Write down a description of the crash while the details are still clear in your mind. Take photographs and get the names of eyewitnesses. Write down your police report number, as well.
  5. Go to the hospital. Before you focus on a car insurance claim, protect your health and safety by going to a hospital in Dallas without delay. Follow your doctor’s treatment plan and request copies of all relevant medical records.

Once you are ready, call your insurance company to file a claim. Do not accept a fast settlement and do not give a recorded statement. Before you settle your claim, consult with a Dallas car accident lawyer. Brake checking accidents are complicated and can lead to difficult liability disputes. A lawyer can help you argue your side of the case, protect your legal rights and fight for the most favorable outcome possible.

Posted by Aaron Herbert at 12:10 pm

What Does it Mean to Subrogate a Claim?

Sunday, April 5, 2020

As the victim of an accident in Texas, you will need to deal with many processes you might never have encountered before. Sorting through the insurance system in pursuit of compensation for your claim can be difficult as the injured party. Insurance subrogation can make things easier. Subrogation is a common process in which your insurance company gives you money for your damages upfront, then goes up against the defendant for reimbursement. A Dallas personal injury attorney can help you understand subrogation after a serious accident in Texas.

What Is Insurance Claim Subrogation?

 All insurance companies reserve the right to bring their own claims against at-fault parties after harmful accidents. Subrogation is the term used to describe this legal right. If someone else gave you an injury, for example, and your car insurance company fronts the costs of medical care, your insurer will then have the right to seek compensation from the at-fault party to repay what it spent on your care. Since you did not cause the accident, your insurance company may not intend to pay the costs. Subrogation is the insurance company’s right to pursue repayment from the at-fault party.
 Subrogation specifically refers to the act of one party filing a lawsuit on behalf of another to collect a debt. It is the process by which an insurance company pursues recovery of the financial losses it – or its policyholder – incurred due to the carelessness or negligence or a third party. Successful subrogation could repay the insurance company for what it paid on your claim. It could also end in some reimbursement for you, such as for any deductibles you paid your insurer to receive the coverage. Subrogation is most common after auto accidents, especially when you file a claim with your own auto insurance provider for a crash you did not cause (e.g. an uninsured/underinsured motorist claim).

 How Long Does a Subrogation Claim Take?

 If your insurance company decides to subrogate your claim, you should receive payment for your vehicle repairs, medical bills and other expenses from your insurance company right away. You will file a first-party claim and receive benefits within 15 to 30 days, in most cases. Your insurance company will need to notify you if it plans to subrogate your claim. If subrogation succeeds, you can receive your deductible back. If your insurance company does not subrogate your claim, you may have the right to seek the reimbursement of your deductible from the defendant on your own.
 Your role is generally small in insurance claim subrogation. Your insurance company and the claims process will need minimal involvement from you. If the other driver or party was clearly at fault for your accident, it may be easy for your insurance company to receive reimbursement from the defendant. A simple subrogation claim can take around 30 days to a couple of months to complete from start to finish. If, however, it is difficult for the insurance company to prove the defendant’s fault, subrogation could take longer. A subrogation claim could take one to several years in complex cases.
 Some insurance policies have waivers of subrogation. This is a provision in the policy in which the insurance carrier waives its rights to subrogation. Insurance policies with these provisions often cost more, since it puts the insurer at greater financial risk. If your insurance company chooses to subrogate your claim, you cannot seek damages yourself from the third party that caused your accident. You cannot seek recovery from both your insurer and the at-fault party. It is important, therefore, to choose your recovery method wisely before you file. Speak to a Dallas injury attorney before deciding how to file your claim. A lawyer can review all your options and choose the one with the best odds of fully reimbursing you for your losses.

Posted by Aaron Herbert at 3:44 pm