FREQUENTLY ASKED QUESTIONS

FOLLOWING A CAR ACCIDENT

WHAT SHOULD I DO AFTER A CAR WRECK?

                     The first thing you should do following a car accident is to call the police so that an accident report will be prepared.  Although the police do not always prepare an accident report they will always require the other driver to properly identify himself and his insurance company.  This will ensure that the person who hit you correctly identifying himself.  If for some reason the police can not come to the scene of the auto accident, write down the license plate of the vehicle that hit you, the name of the driver and vehicle, the driver’s license number of the responsible driver, and his insurance company.  Also get the names, addresses and phone numbers of any witnesses to the car wreck.

WHAT SHOULD I DO IF I AM INJURED IN A CAR WRECK?

The first thing you should do if you are injured in a car accident is to seek medical treatment from the health care provider of your choice. It is important for you to try to receive treatment as soon as possible following the accident. You have the right to the treatment of your choice. For example, you may choose a medical doctor, a chiropractor, an osteopath, a podiatrist, or another type of health care provider.

WHAT LOSSES CAN I RECOVER FROM THE PERSON AT FAULT IN THE CAR ACCIDENT?

The types of damages for which you can seek a recovery from the person who caused the accident are expansive. The following is a list of some of the types of damages for which you are allowed to seek a recovery:

                     Damage to your vehicle

                     Medical Expenses

                     Lost Wages

                     Pain and Suffering

                     Impairment

                     Disfigurement

                     Punitive Damages

DOES THE INSURANCE COMPANY FOR THE PERSON AT FAULT HAVE TO MAKE ME A FAIR OFFER?

Although the individual who caused the accident is responsible for your damages, his or her insurance company in most situations has no legal obligation to treat you fairly or in good faith. Texas courts have for the most part limited insurance bad faith claims to the acts of an insurance company against their own insured. Unless you are making a claim against your own auto insurance policy, do not expect to be treated in an equitable manner. Even when you are making a claim against your own policy, your view of what is fair is likely to be vastly different from the view of the insurance adjuster handling the claim.

Insurance companies employ adjusters to handle auto accident claims who are trained professionals. They are free to offer you arbitrarily low amounts of compensation and force you to either accept it or file a lawsuit. While the better adjusters attempt to maintain the appearance of a friendly and trusting relationship with their claimants, you should not interpret this as a sign that they are looking out for your best interests.

You should note that if the insurance company for the negligent driver fails to offer you adequate compensation the injuries you received in a car wreck, you will be forced to file suit against the negligent driver if you want to fully recovery your damages. It is important that you recognize that your suit must be filed against the negligent driver and not his or her insurance company. In Texas this must be done within the two year statute of limitations applicable to personal injury claims. The two year limitations period starts at the day of the auto accident. Although a law suit would be filed against the negligent driver, the insurance carrier for this driver will hire an attorney to represent the negligent driver. The fact that this person has insurance will not be admissible at trial and the parties will be ordered by the judge not to inform the jury that the negligent driver has insurance. The jury will also not be informed of any settlement negotiations.

SHOULD I TALK TO THE INSURANCE COMPANY FOR THE PERSON AT FAULT?

You have no obligation to contact the insurance company which insures the person who caused the car wreck. You also have no obligation to talk to this insurance company if they call you. In most cases the insurance adjuster for the person at fault will attempt to contact you immediately following the accident in order to take a recorded statement. This is usually the time that persons are upset or still in shock following the collision. When this is combined with the fact that you may be questioned in detail by an adjuster who is trained to ask questions which may benefit their denial or reduction of your claim, you may give an inaccurate statement which will severely affect your right to achieve a fair settlement of your claim. We recommend that you consult an attorney prior to contacting the insurance carrier. At BEMIS, ROACH AND REED, our lawyers are willing to give you a free consultation in order to assist you at this stage of your claim.

WHAT CAN I RECOVER FOR THE DAMAGE TO MY VEHICLE?

You have the right to recover the cost of repairing your vehicle. You have the right to choose the repair shop and the brand, type, kind, age, or condition of parts or products used to repair your vehicle. Although the insurance company for the responsible driver may perform an estimate of the cost of repair, you should also have an independent body shop perform an estimate of the damage. Most body shops will do this free of charge. If the cost of repair is more than the value of the vehicle just prior to the accident you are entitled to recover the pre-accident value of your vehicle plus the amount you would pay in sales taxes and title transfer fees to purchase a vehicle of the same value. For more information view the Texas Auto Insurance Bill of Rights.

WHAT IF I NEED MEDICAL TREATMENT, BUT CAN’T AFFORD IT?

Although you have the right to recover the cost of all reasonable and necessary medical expenses from the person responsible for the collision, the insurance company insuring the person responsible for the collision has no obligation to pay for these medical expenses as they are incurred. This can place a severe hardship on an individual with no health insurance, personal injury protection insurance, or medical payments coverage. As a result, some people feel forced to accept a low settlement of their claim in order to pay their medical providers. This does not have to happen. You should contact your doctor or an attorney for advice as to what programs and deferred payment plans may be available to allow you to complete treatment prior to settling your claim.

WHAT IF THE PERSON WHO HIT ME HAS NO INSURANCE OR NOT ENOUGH INSURANCE?

Although the law requires every driver to have insurance, many do not. Unfortunately, if you are hit by an uninsured motorist your options may be limited. If your insurance policy contains collision coverage then you can recover the cost of repairing your vehicle or, if it is totaled, the value of the vehicle. If you have uninsured motorist coverage you can also recover that amount of your personal injury damages that does not exceed your policy limits.

Because of the high cost of medical care and the fact that the legally required minimum insurance limits are low, many find that the person that caused the car wreck does not have enough insurance to pay your claim. If this situation arises you should consult an attorney immediately. Although you may have under-insured motorist coverage which may assist you, there are certain legal requirements you must need in order to collect under-insured motorist benefits. You should never accept a negligent driver’s statement that he has no insurance or a statement from the insurance company that there is not enough insurance without first contacting a lawyer.

WHAT IF THE PERSON WHO HIT ME WAS DWI, ON DRUGS, OR LEFT THE SCENE?

If the police report or witnesses indicate that the driver of the vehicle that caused the car wreck was under the influence of alcohol or drugs or left the scene, then you also may be entitled to punitive damages. It is difficult to determine the extent of these damages but they may be substantial. In order to properly evaluate these damages it is recommended that you consult an attorney for his or her opinion as to how much this will increase the value of your claim.  For more information relating to victims of drunk drivers you may wish to click on this link for our page on Victims of DWI.

WHAT IF MY DAMAGES EXCEED THE AMOUNT OF THE INSURANCE OF THE PERSON AT FAULT?

Many drivers carry minimum liability insurance and your claim may exceed the value of these limits. When this occurs the negligent driver's insurance company may offer to settle your case for the amount of the available insurance. This offer should not be accepted until a thorough investigation is completed. Often times, other insurance, such as under-insured motorist coverage can supplement your recovery. We have found many creative ways to help our clients in circumstances where it appeared that the coverage was insufficient.

HOW IS MY INSURANCE INVOLVED?

If you are involved in a car accident, you may have a right to pursue a claim with your own automobile insurance company for all or part of your damages. Your rights in this regard are dependent on what coverage you had in effect at the time of the accident. After an auto accident you should look at a copy of the insurance policy in effect at the time of the car accident which covered you and/or the car you were in at the time of the collision in order to determine what rights you have with regard to any of this insurance. Depending on this coverage you may have the ability to recover all or a portion of any damages to your vehicle, your medical expenses, your lost wages and other damages.

If you had collision coverage in effect, you will be able to recover from your insurance company for the damage to your vehicle less your deductible. This is true even if the accident was your fault. If the accident was not your fault you can still make a claim under your collision coverage. In such a case your insurance company will then have the right to pursue the responsible driver or his or her insurance carrier for these damages.

If your policy includes Personal Injury Protection (PIP) or Medical Payments coverage you will also be able to make a claim for medical expenses related to the treatment of injuries you received in the accident up to the limits of this coverage. If you have Personal Injury Protection coverage you may be able to recover 80% of your lost wages related to this accident provided that the combination of the medical expenses and 80% of lost wages submitted under your PIP coverage does not exceed the limits of your PIP coverage.

If your vehicle is totaled you will need to check and see if you have GAP insurance to pay the difference in the amount that your loan balance exceeds the fair market value of your vehicle. We have found that many GAP insurance carriers to be very slow in paying such claims so it is important to contact them early and provide them with all required documentation as soon as possible. Be sure to document what you sent them and when you sent it to them and correspond by certified mail.

WHAT IS UIM AND PIP COVERAGE ON MY CAR INSURANCE AND SHOULD I PAY FOR THIS COVERAGE?

If you’re hurt in an auto accident, no matter who is at fault and no matter what vehicle you are in, your personal injury protection insurance (PIP) will pay your medical bills, expenses and up to 80% of your lost income up to the limits of your PIP coverage.  Uninsured or under-insured motorist (UIM) coverage helps compensate you in the situation where the negligent driver had no insurance or insufficient insurance to cover you claim.  In the case of an underinsured driver your UIM coverage will make up the difference between a negligent driver’s insurance policy limits and the total damages you suffered from your injuries, depending on the amount of your damages and the amount of your coverage.  UIM coverage is important because the emergency room bill alone could easily be many times higher than the minimum coverage Texas drivers are required to carry.  When buying car insurance, it is highly recommended that you purchase this coverage.  You may never need it, but if you do, it could make the difference in keeping you and your family afloat while you’re recovering. 

WHAT’S THE DIFFERENCE BETWEEN PIP AND MED-PAY COVERAGE?

There are two significant differences between Personal Injury Protection (PIP) and Med-Pay. PIP will cover both medical bills and 80% of any lost wages while Med-Pay only covers medical bills.  The amount of coverage depends on how much you coverage you purchased. Also, PIP payments do not have to be paid back to your insurance company if you make a recovery from the negligent third party. However, with Med-Pay, if you obtain a settlement from the liable party your insurance company may seek reimbursement out of your settlement for any payments they made under your Med-Pay coverage.  PIP is recommended over Med-Pay.