How Liability, Damages, And Recoverability Affect Crash Claims
Car crashes come in all shapes and sizes. Some wrecks involve two vehicles, while others have three or more. Some accidents cause minor injuries, while others are catastrophic. Though no two collisions are the same, all crashes can be compared and analyzed by looking at three different elements: liability, damages, and recoverability.
Liability: Who Caused the Collision?
Whether pursuing a liability or UM/UIM claim, the first step is to prove that the at-fault driver was responsible for causing the collision. In Texas, injury lawyers use the cause of action known as “negligence” for most crash-related claims. A driver is negligent when he or she fails to act as a person of ordinary prudence would have under the same or similar circumstances and, in so doing, causes injury to another person. Some of the ways a driver can be negligent include:
Failure to control speed;
Failure to yield the right-of-way;
Failure to pass safely;
Using a cell or mobile device;
Driver inattention; and
Driver fatigue.
Following most collisions, someone usually calls 911 for emergency assistance, and the responding law enforcement officer completes a crash report. A well-written crash report contains many important details, including:
The time and date of the collision;
The area where the collision occurred;
The names of all persons involved in the collision;
A summary of how the officer believes the collision occurred; and
Who the officer believes caused the collision.
Since law enforcement officers are trained to evaluate car crashes to determine who was at fault, the police report is a crucial piece of evidence used to prove that the at-fault driver’s negligence caused the accident. Without a police report, the insurance company may deny the victim’s version of the events or place some of the blame on him or her. To avoid this, crash victims should always call 911 and ask the responding officer to write a police report after a collision. In some of Texas’s bigger cities, though, a law enforcement officer may not be dispatched to a crash site, especially if no one is seriously hurt. In those cases, a victim should take pictures of the collision and get the contact information of all potential witnesses in case the other driver refuses to accept responsibility for causing the crash.
Damages: What is the Victim Entitled to Recover?
After establishing that the at-fault driver’s negligence caused the collision, the next step is to prove that the collision caused the victim to incur damages. The two most common kinds of damage following a car crash are property damage and bodily injury.
Property Damage
Following a car crash, Texas law allows victims to recover compensatory damages. Compensatory damages are designed to put the victim in the position that he or she would have been in had the crash not occurred. Concerning property damage, this usually means getting reimbursed for the costs of repairs or receiving the pre-collision market value of the vehicle. In either case, a crash victim can receive damages for loss of use (e.g., the cost of a rental car) since the at-fault driver's negligence caused the victim to lose the use of the vehicle.
Bodily Injury
Crash victims can also receive compensatory damages for their bodily injuries. In most cases, evaluating a victim’s bodily injury claim begins with—and depends heavily on—the relevant medical bills and records, which usually stand as a barometer for the severity of the victim’s overall injuries.
In addition to past medical expenses, a crash victim can also recover damages for:
Physical pain;
Mental anguish;
Physical impairment;
Disfirgurement;
Future medical expenses;
Lost wages; and
Lost earning capacity.
The fact that a crash victim could recover damages for physical pain separately from past medical expenses does not minimize the necessity of receiving immediate medical attention following an accident. My friend, a Central Texas injury lawyer, tells his clients, “Untreated pain is uncompensated pain.” He says this because most insurance adjusters will discount a victim’s subjective complaints of pain if the victim either fails to seek medical treatment immediately after the collision or does not follow the medical practitioner’s course of treatment. Since certain medical conditions have delayed symptoms, crash victims should always seek medical attention if they sustain any bodily injuries (no matter how small) and follow all prescribed treatment plans until properly released by their medical practitioner.
Recoverability: Are There Available Funds to Compensate the Victim?
The first two steps—establishing liability and damages—are necessary to analyze and evaluate a crash claim properly, but they are not sufficient. The third step—locating all possible sources for potential recovery—actually should be the first because even a catastrophic collision may be monetarily worthless if there are insufficient funds available to compensate the victim.
If the at-fault driver does not have auto liability insurance, a crash victim would have to sue the at-fault driver, gather and present the evidence to a judge or jury, secure a favorable judgment, and pray that the driver has sufficient assets to satisfy the judgment. This process can be expensive and take years. Moreover, since most people are “judgment proof,” meaning they do not have sufficient non-exempt property that could be seized to satisfy a judgment, this expensive and time-consuming process could be a waste.
Texas law makes it easier for crash victims to recover damages by requiring each motorist to maintain at least $30,000.00 of liability coverage for personal injuries per claimant—up to a total of $60,000.00 for all claimants—and at least $25,000.00 of coverage for all property damage. As we have previously discussed, though, some motorists drive without liability insurance, and many injuries are so severe that limited liability policies are not enough to compensate a victim fully. To safeguard against those two scenarios, many drivers purchase UM/UIM coverage.
To illustrate the importance auto insurance has on recoverability (and, more importantly, on the value of a crash claim), let’s say that a crash victim is injured when a driver collides into the back of the victim’s car. The victim takes an ambulance to a nearby hospital and receives continual medical treatment after discharge. It does not matter how badly injured the victim is, whether the injuries require surgical attention, or how culpable the at-fault driver was in causing the collision; the liability carrier’s duty to pay damages on behalf of its insured ends once it tenders the policy limits. While $30,000.00 seems like a lot of money, some Cameron County hospitals routinely charge more than that—and file hospital liens to recover—for routine emergency room visits.
The bottom line is a crash victim’s recovery is limited to the negligent driver’s liability policy limits if the other driver is “judgment proof” (and almost all drivers in the Rio Grande Valley and South Texas are) and the victim does not have UM/UIM coverage. If the victim’s medical expenses and other damages exceed the at-fault driver’s liability policy limits, this victim could have unpaid bills even though the liability carrier tendered the policy limits. The outcome would be worse if the at-fault driver is uninsured. Since it is always tough—if not impossible—to help someone in this situation, the best cure is preventive medicine. Practically speaking, this means drivers should purchase as much UM/UIM coverage as they can afford.
Speak With An Injury Lawyer Immediately After a Collision
When a crash victim files a claim, the insurance company assigns that claim to an adjuster. The chances are high that the adjuster has more experience than the victim does (and the chances are higher that the adjuster will use that experience against that victim). If a negligent driver has injured you or a loved one, you have enough things to worry about. Do not let dealing with the insurance company be one of them. We deal with the insurance company so you can focus on getting your life back to normal. You have one chance to do this; make the right choice by choosing the right attorney. Call us at (956) 291-7870 or email us at contact@rdjlawyer.com for a free consultation and case evaluation.