Determining Fault in Texas
Texas is a modified comparative fault state. This means that each party in a personal injury incident—the injured person and the party allegedly responsible for the injury — can be assigned a share of the fault. If you are rear-ended and suffer a back injury, and the jury determines that you were 20% at fault because of a broken taillight, your award will then be reduced by 20% ($10,000 in compensatory damages will become $8,000, for example). If you are found more than 50% at fault, you cannot collect anything.
Insurance adjusters will seek to establish a level of fault on the claimant’s part to reduce their companies’ liability.
Will You Need to File a Lawsuit?
If you are injured in a car accident, you will most likely start by reporting it to the at-fault party's insurance company to seek compensation for your injury from that insurance company. However, you may end up filing a lawsuit if the insurer tries to lowball or deny your claim. Likewise, if you slip and fall on someone’s property (and you are there legally), you may well start by filing an insurance claim with their insurer before proceeding to the courtroom.
Successful auto and property liability insurance claims can cover your medical expenses, loss of income, and damage to your property (for example, your car in a vehicular accident). Insurance carriers may or may not compensate you for non-economic factors like pain and suffering and loss of consortium (companionship). In some circumstances, a personal injury lawsuit will need to be filed in order to ensure full coverage of both economic and non-economic damages, generally without any monetary cap (except in medical malpractice lawsuits).
There is, however, a two-year statute of limitations on filing personal injury lawsuits in Texas, dating from the day of the accident itself. If you try to file a lawsuit more than two years after the date of your injury, your lawsuit will most likely be barred.
To win a personal injury lawsuit, you must prove negligence on the part of the defendant — the person or entity you claim is responsible for your injury. To do this, you must show:
- The defendant owed you a duty of care
- The defendant breached that duty of care
- The breach caused your injury
Filing a Wrongful Death Lawsuit
If a member of your family dies due to the negligence of another party, you have the right to file a wrongful death lawsuit. The surviving spouse, children, and parents of the victim are eligible to file such a suit.
You can recover both economic and non-economic damages, but you must file the lawsuit within three months of the date of the death. After that, the law says the personal representative named in the decedent’s will must file the lawsuit. If there is no will or no representative has been named, you’ll have to go to the probate court to have a representative appointed for the estate. The personal representative (or “executor”) is bound by the surviving family’s wishes, so if you don’t want to file a lawsuit, they are barred from doing so themselves.
Why You Need Skilled Attorneys
Personal injury cases can be complex and frustrating, especially if you try to go it alone. If you file an insurance claim, the adjusters for the other party’s insurance company will likely try to trick you into making statements that they can use against you to minimize your injury and maximize your share of the fault. You do not need to negotiate directly with these adjusters. Instead, you should rely on experienced personal injury attorneys to do the negotiating for you.
At McLaurin Law, we have years of experience in helping clients like you who have suffered injuries because of other people’s actions or neglect. We will fight compassionately and aggressively for your rights, with the goal of attaining the best possible compensation package for you.