In the State of Texas, if you are more than 50% responsible for your own injury, then you’re not entitled to any payment at all. If the insurance adjuster believes that you’re more at fault, they simply won’t pay anything at all, and their decision not to do so will likely be reinforced in court if you have no evidence to the contrary. So, unfortunately, if you were over 50% responsible for the accident, you may be out of luck.
If there is evidence and a case to be made that you are less than 50% at fault, you must make it extremely clear that you are less than 50% at fault—or less at fault than the other driver. If you go to court and a jury finds that you’re even just a little bit more at fault for your own injuries than the other person was, they will not find that you are entitled to anything.
However, if you can prove that while you may be somewhat at fault, you are less at fault than the other driver, then you might still be entitled to compensation. This compensation will likely be reduced depending on the percentage of fault you had in the accident, but it will still be some compensation.
When it comes to reduced compensation, the total possible amount of compensation is usually reduced by the percentage of fault that you are determined to have had for the accident. For instance, if it is determined that you are 20% at fault, they will reduce the amount that they are willing to offer you by 20%. The first determination made about your percentage of fault is usually made by an insurance adjuster. Oftentimes, if you have an attorney, the attorney can challenge those determinations and help you to get paid in full.
Will The Insurance Company Have Access To Any Of My Past Or Present Medical History? Will They Be Informed About My Treatments? Could This Information Impact My Case?
In a typical car accident case, when your medical bills are sent over to the insurance company, they will include the records from the ER (or other medical provider), as well as the records from anywhere else where you sought treatment for the injuries caused by the accident. So, typically, the information they receive is limited to the period of time starting from the accident.
There are some instances in which an insurance company may request information from your medical history. When asked for medical information in that context, you have a choice whether or not to provide it. However, if you do not provide that information, they can use it as grounds to deny payment for a specific service or services.
For instance, let’s say you are claiming that you started having seizures after the accident, and had no past medical history of seizures beforehand. The insurance adjuster may ask to see the last 5-10 years of your medical history to confirm that there was no reported note or treatment for seizures. If you had no seizures in the past and provide medical history saying so, it will effect how they value your claim.
If you wind up filing a personal injury lawsuit, you do have to provide all of your medical history. At that point, the insurance company may be granted the ability to look through that medical history, even in areas that are not relevant to the car accident injuries.
How Long After A Car Accident Do I Have To File A Personal Injury Claim In Texas?
In Texas, you have two years from the time of an accident to file a personal injury lawsuit. Often, people wind up missing this deadline in the time it takes to file a claim with the insurance company, get denied, and argue back and forth with appeals and challenges. In Texas, if you wait more than two years to file a personal injury lawsuit for any reason, your claim becomes invalid, and you cannot file the suit.
So, even as you’re dealing with an insurance claim, you have to file a lawsuit within two years of the accident. Even if the insurance claim has not been settled and you’re still pursuing it a year and a half in, you must move forward with the lawsuit before you reach the two-year mark.
If I Was Hit By An Uninsured Or Underinsured Driver In Texas, Do I Have Any Chance Of Recovering Financially For My Injuries?
Unfortunately, it is very difficult to recover financially if you were hit by an underinsured or uninsured driver in Texas—UNLESS you have uninsured/underinsured driver coverage on your own insurance policy.
I wish I could do a public service announcement to let people know that they need to have uninsured/ underinsured coverage. This is a type of coverage on your own insurance policy that will kick in if you’re injured by a driver who did not have insurance, or did not have sufficient insurance.
If you want to avoid winding up in a situation where you cannot recover financially because you were hit by an uninsured or underinsured driver, the first step would be to look at your own policy to see if you have that coverage.
By default, under Texas law, you should have uninsured/underinsured driver coverage, unless you explicitly signed a waiver saying that you do not want that coverage. It has to be in writing, and it has to be signed by you. In some cases, I have had clients who had uninsured/underinsured driver coverage, and just didn’t know it until they were hit by an uninsured/underinsured driver. If it turns out that you do have that coverage, you can file the claim on your own policy and get paid that way.
If you don’t have that coverage, but you don’t remember explicitly refusing an offer for that coverage, then you should ask to see a copy of the signed denial from your insurance company. Insurance companies are required to have your signature on-file saying that you did not want uninsured/underinsured driver coverage. If you did indeed sign this sort of waiver, then there’s no luck there and you may need to pursue other options.
The options for pursuing payment for your injuries from an uninsured/underinsured driver are fairly limited, but they do exist. The Texas Department of Public Safety does have the option of suspending the driver’s license of the at-fault driver, only reinstating it once that person has paid for the damage that they caused, or at least started making payments. This is added incentive that might get otherwise unincentivized parties to make payments as soon as possible.
Another option is to file your own lawsuit against the at-fault driver, and see if you can get paid that way. The problem with this option is that if that person has no assets for you to collect from, then the chances of recovery are likely quite slim. A lawsuit against the individual driver may be a good move if the person has assets or significant amounts of money, but it is otherwise difficult to get compensation this way.
The Insurance Company Offered Me A Settlement Right Away. Should I Take It?
As a general rule, do not accept the first offer. The insurance adjuster is expecting kind of a back-and-forth negotiation about the amount of compensation you are owed, or will settle for. They are not expecting you to take the first offer. In fact, if you did take the first offer the insurance adjuster put forth, they would probably be quite surprised.
As stated above, the insurance adjusters are expecting that back-and-forth negotiation process, and that is what you should come prepared for. However, it is important to keep in mind that if you do not settle your case during this phase and decide to go to court instead, the outcomes may vary. In some instances, you may get more from a court case, but in others, you may get less, or nothing at all.
There’s this abiding risk that you could get less or more during the process, and one of the reasons people accept settlements in the first place is that it gives you more certainty. With a settlement, you get the money right away, and ultimately wind up spending less money on attorney’s fees for the negotiation and litigation process. There are many expenses involved when pursuing a lawsuit, and you’re not entitled to recover those expenses back.
Basically, it’s not usually wise to accept the first settlement, but anyone in this sort of negotiation process should do their best to negotiate back and forth, hopefully with the help of an experienced attorney. If the adjuster has a certain concern, provide evidence that will help to support your case and that would allow you to ask for a higher amount. Do not accept the very first offer that you’re given.
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