Frequently Asked Questions
What is a survival action?
A survival action is a claim for the damages suffered by the person who has died, and is brought on behalf of that person, often by a loved one or other representative of the estate. The law allows damages to be recovered in the survival action such as:
- Funeral expenses
- Medical bills incurred due to an accident before death
- Damages for conscious pain and suffering and mental anguish between the time of injury and death.
What is a wrongful death action?
The wrongful death portion of a death case is brought by the loved ones who are left behind, and who have experienced economic and emotional effects of the loss of the person who has died. A wrongful death case may be brought by or on behalf of the children, spouse, and/or parents of the person who has died (or sometimes others in a special relationship with the person who has died). The law provides that the wrongful death case may seek damages for the loss of the emotional and physical relationship, as well as damages for the loss of financial support from someone who was working and contributing to the family.
If children are involved, how long do they have to bring an action?
When children have lost a parent due to an accident or other act of negligence, the law, in most cases, requires legal action to be taken promptly after the death, and most often does not allow the child the opportunity to wait until adulthood to make a claim. In most instances, such claims must be brought within the standard time limitations for bringing other personal injury cases, which may be as little as two years (three years in New Mexico), but may also be shorter depending on the type of case.
If you have questions about a wrongful death case, please contact us. There is no fee for the initial consultation, and we would be privileged to be able to advise you and your family.
Q: Ouch! I didn’t think I was hurt when I spoke with the police officer, but later I realized that I was hurt. What should I do?
A: Car wrecks are always traumatic, startling events. Even if you are fortunate enough not to have any broken bones or lacerations which required emergency attention right after the wreck, it is common to discover injuries you didn’t realize you had at first during the days or weeks that follow. Bruises, bumps, strains, and sprains may take several days to show up, and you may not feel them at first due to the shock and adrenaline you experience right after the accident.
It is always a good idea to get a medical checkup with your primary doctor or an emergency room following an accident, and to watch carefully for the onset of latent injuries during the weeks that follow. It is possible you will discover neck or back injuries that you were not aware of. It is also important that you have enough time to properly evaluate any such injuries before you make your claim to the other insurance company. Once you settle or otherwise resolve your case, you can’t go back and get more money. Many insurance companies may pressure you to settle your case too quickly, before you have had the opportunity to find out the true extent of your injuries.
Q: What damages can be recovered for injuries caused by a car accident?
A: There are many elements of damage you may suffer when involved in a car accident. The law allows injured persons to recover:
* Medical costs
* Future medical costs
* Lost wages
* Damages for pain and suffering
* Damages for physical disability
* Damages for scarring and disfigurement
Wages you lost because of time missed from work may also be claimed even if sick or vacation days are used for some or all of the missed time. “Pain and Suffering” refers to the physical pain and discomfort as well as worry, anxiety and embarrassment which results from the injury.
“Disability” is the temporary or permanently diminished ability to enjoy life. This includes a person’s inability to pursue the pleasurable aspects of life. The avid bicyclist who isn’t able to ride after suffering injury in a car accident may be entitled to compensation for her “loss of a normal life” or disability.
“Disfigurement” refers to the obvious damage to the body such as scarring, burns or amputation. The impact that such a condition has and will have upon the injured person is the basis of the claim. The location, size and visibility of the scarring factors heavily into the degree of compensation appropriate.
Q: How do I determine who was at fault?
A: If the accident was someone else’s fault, you may be entitled to compensation. Fault is determined by evaluating a variety of factors. The description of the collision by the drivers involved, witness statements, the nature and location of the damage to the vehicles, observations and conclusions of police officers at the scene and, in some cases, accident reconstruction, are all means by which fault is evaluated.
Under the law, more than one driver involved in an accident may be considered to be at fault. Just because a single driver received a citation, or was noted on the accident report as being at fault, does not always mean that the court will assess fault in the same way. Insurance companies can also be reluctant to accept or agree that their driver was at fault for a collision.
Q: How is an insurance claim initiated?
A: A claim may be made with the at fault driver’s insurance company. A claims adjuster is assigned by the insurer to evaluate the fault of the drivers, the nature of your injury and the property damage your vehicle sustained. It is important to remember that the claims adjuster’s job is to limit the amount paid to you to whatever extent possible. The claims adjuster represents the interests of the insurer. Involving an experienced attorney to work on your behalf can level the playing field and provide the experience necessary to protect your interest in receiving full compensation for your loss.
Q: Should I provide a statement to the other insurer?
A: Many insurers ask to take a recorded statement from the injured person shortly after the accident. We do not recommend providing a statement without first speaking to a lawyer. The claims adjuster who will take the statement does not represent your interests. A recorded statement often addresses crucial issues of fault and damage. Before providing a statement, speak with a lawyer who can assess whether it is in your interests to do so, and who can be with you personally when you give any statement. Do not allow the insurer to address these critical issues without the benefit of a lawyer acting on your behalf.
Q: What if the other driver does not have insurance?
A: If the other driver who caused the accident is uninsured, you may be able to obtain compensation through your own insurer through under-insured motorist coverage, which Texas law requires every policy provide unless rejected in writing. This coverage protects you and passengers in your vehicle when you are injured by a person who failed to carry insurance.
An uninsured motorist claim is governed by the terms of the policy. The recovery of compensation is limited to the amount of coverage you have purchased. It is important to review the policy to determine the terms and amount of coverage available.
Q: What if the other driver has limited insurance coverage?
A: If the other driver does not have enough insurance to cover your medical bills, you may be entitled to compensation from your own insurer under your under-insured motorist coverage. Like uninsured motorist coverage (UM), under-insured coverage (UIM) is required to be offered under every Texas policy, unless rejected in writing. This coverage protects you, members of your family, and occupants of your vehicle when the insurance of the other driver is smaller than the coverage you purchased and the compensatory value of your claim exceeds the policy limit of the other driver’s policy.
An example of an under-insured motorist claim is as follows:
John, age 17, is a passenger in a car driven by his friend, Larry, when they are broadsided by a drunk driver. John’s leg and wrist are broken in the collision, and he has medical bills and other damages well over $20,000. He soon learns that the driver who hit them had only $20,000 in insurance coverage. In that event, John can look to the UIM coverage under his own insurance policy, under his friend’s insurance policy, and perhaps under his parent’s policy, depending on the extent of his damages.
Whether you are entitled to under-insured motorist benefits depends upon careful review of your insurance policy, the policy of the other driver, the circumstance of the collision and the nature of the injury suffered.
If you don’t have UIM insurance coverage, it is also possible that we may be able to assist you in negotiating reductions in medical charges from your medical providers. Many providers have little-known billing policies that can be used to reduce the amount you have to pay to a manageable amount, allowing you to make better use of limited insurance coverage.
How is truck driver conduct regulated?
Due to their size, weight, and the distances and conditions they are driven under, semi trucks are regulated by the State and Federal Government. Truck drivers are often taught certain driving skills so that they may appropriately respond to various traffic conditions. The focus of this education is improved safety management, preventative maintenance and defensive driving. The training addresses negotiating curves, passing, turning left and right, crossing intersections, using and changing lanes and pedestrian interaction. Whether the appropriate actions were taken by the driver of a truck involved in an accident must be evaluated on a case by case basis.
Federal regulations require specific driver documentation and conduct. Preventative maintenance and inspection, driver documentation, brake performance, tire inflation, tire wear and deterioration, wheel retention and deterioration, steering system performance, full trailer coupling, vehicle lighting and conspicuity, pay load characteristics and cargo procurement are all specifically regulated. The conduct of the driver, condition of his vehicle and the circumstances surrounding the collision must be promptly reviewed and evaluated to determine whether the truck driver’s conduct conforms with the applicable rules.
Who may be responsible for the injuries suffered as the result of a truck driver’s negligence?
If the driver of the truck was negligent and his negligence caused you injury, he may be liable for the damages you suffered. The truck driver’s employer and in some cases the entity which leases the vehicle may also be liable for the negligent conduct of a truck driver. The terms of the lease and the nature of the relationship between the driver and the party that retained and compensates him must be examined to determine their potential liability.
What if the truck accident occurred because the truck wasn’t properly loaded?
Federal safety regulations impose a duty on a carrier to secure the load safely. Different types of loads have their own requirements for being properly secured. A trucking company is not liable for defects which are not apparent upon a reasonable inspection of the load. The company is also not liable for sealed loads. However, a shipper may be liable where it improperly loaded its own truck, its employees negligently instructed the truck driver on the manner in which the cargo should be secured or if the truck driver was given false assurances as to the safety of the load. It is important to determine the identity of the party involved in loading the trailer if it is suspected that the cargo was not appropriately loaded. The circumstances surrounding the loading of the vehicle and the identity of those involved in the loading should be determined as quickly as possible after the accident occurs.
What if the truck driver was not qualified to drive the truck involved in the accident?
The incompetence of a truck driver may result in liability for the company who hired him. The concern is whether the employer exercised “reasonable care” in hiring or retaining the driver. Did the employer make a reasonable investigation of the driver? What did the employer know or what should he have been known prior to hiring the truck driver? Federal regulations require a reasonable investigation of a driver’s qualifications at the time the driver is hired. The regulations require that the driver must be able to do the following:
- safely operate the type of motor vehicle he drives
- determine whether the cargo he transports has been properly located
- determine whether the cargo he transports has been appropriately secured
- is familiar with the methods and procedures for securing cargo
- is physically qualified to drive a motor vehicle
- has a valid commercial motor vehicle operator’s license
- has prepared and furnished the motor carrier that employs him with a list of violations of the motor vehicle traffic laws and ordinances which the driver has been convicted of within the preceding 12 months
- has successfully completed a driver’s road test
- has completed and furnished the motor carrier that employs him with an application for employment
The failure to comply with federal regulations may be evidence that a “reasonable investigation” was not performed and may give rise to an independent basis of liability against the employer. Whether the truck driver who caused your loss was qualified must be evaluated based upon the facts surrounding your collision.
What if the accident was caused by truck driver fatigue?
Driver fatigue and lack of sleep is the number one cause of truck crashes, a greater danger than either alcohol or drugs, according to studies of the National Transportation Safety Board. It is estimated by the U.S. National Highway Traffic Safety Administration that driver fatigue may be responsible for as many as 240,000 motor vehicle accidents in the U.S. annually. If the fatigue of a driver causes him to weave or fall asleep at the wheel, both he and his employer may be held liable for the personal injuries and damages which result.
Driver fatigue which causes an accident may be the fault of the driver’s employer under certain circumstances. In determining whether an employer contributed to the driver fatigue the following may be considered:
- Did the trucking company properly monitor the driver?
- Was a driver ordered to continue driving despite complaints made to a company dispatcher that he was too tired to continue?
- Was the truck driver required to meet a time schedule for the delivery of shipments that required driving beyond federal limits?
- Did the company fail to consider driver fatigue in scheduling load delivery?
Driving while fatigued is dangerous and is a violation of federal regulations. Careful evaluation of the circumstances surrounding a collision may reveal that driver fatigue played a role in the accident.
Do truck drivers have to carry liability insurance?
The Federal Motor Carrier Safety Administration regulates the amount of insurance a carrier must maintain. For vehicles weighing more than 10,000 pounds and hauling only non-hazardous materials, minimum liability coverage of $750,000.00 is required. If hauling hazardous materials, the required minimum liability coverage increases to between $1,000,000.00 and $5,000,000.00 depending upon the type of material transported.
How does workers compensation work?
Texas law does not require an employer to carry workers compensation insurance coverage. When an employer chooses to carry coverage, benefits are provided for injured employees, in most circumstances, without regard to fault for the injury. However, the benefits available under workers compensation are limited to wage benefits (up to a statutory limit) and medical benefits.
Many aspects of an injured workers damages are not covered by workers compensation. For instance, workers compensation does not pay for pain and suffering caused by an accident. Even where workers compensation applies, it is sometimes possible to bring a third party action or independent claim, against an independent company, worker of another company, or another individual or corporation that was at fault for the injury, other than the employer. In such cases, the employee may recover for the full measure of damages the law allows, and then reimburse the workers compensation carrier for the benefits that have been received by virtue of workers comp.
What if my employer does not carry workers compensation ?
Under Texas law, if an employer chooses not to carry workers compensation, then that employer may be held legally liable for injuries that occur to employees. By electing to be a non-subscriber, the employer also loses many defenses that a company would otherwise have to a lawsuit, including alleging that some portion of the fault for the accident was due to the injured employee. In order to hold the employer liable, however, circumstances still must indicate that the employer was negligent in some way.
How soon should I contact an attorney?
After a workplace injury, more so than in any other type of case, it is critical to contact an attorney as soon as possible. The attorney will help you to understand your rights, and will tell you what steps should be taken to preserve your rights. Industrial companies usually have dedicated teams of accident investigators, insurance adjusters, attorneys and risk managers who respond immediately after an accident to minimize the legal exposure of the company. This often results in the suppression of witness statements and the destruction or hiding of evidence. When an attorney gets involved quickly on your behalf following an accident, steps can be taken to preserve and document important evidence before it can be lost or covered up.
Q: Doesnt the government maintain federal safety standards for products?
A: Yes, the U.S. Government does have federal safety standards for some products. For example, automobiles, trucks, aircraft, medical devices and pharmaceuticals. However, in many cases the federal standards are based on information and technology that is several decades old, and the standards have not kept pace with modern technology. Federal standards are not always enough where industry standards call for far greater safety measures to be taken.
Q: Don�t manufacturers have safety standards and quality control programs to prevent injuries due to defective products.
A: In many cases, industrial safety standards and programs fall short because of incomplete research, design programs, or because of a lack of recalls once problems are discovered. Industries, unfortunately, have proven time and time again that financial concerns often outweigh safety concerns, and what is expedient and cost-effective takes the place of what is right. Firestone tires, Ford Explorer rollovers, Ford Mustang gas tank problems, and side-saddle gas tank explosions have all been examples of unfortunate decisions that were made at corporate levels to sacrifice safety because an unsafe path was more lucrative and cost-effective. Each of these instances mentioned resulted in needless injury and death to consumers of these products, before injured consumers and their families took legal action to take these dangerous products off the market.
And the problem is getting worse, not better. With the interglobalization of the world economy, more products are being imported from other nations that have not developed the same design and manufacturing standards that the United States has.
One of the many benefits of the civil justice system is that it gives consumers a voice, and legal action often results in manufacturers making changes to products to make them safer, because it finally supports a decision of cost effectiveness to make the product safer in order to avoid lawsuits.
Q: Should I take the defective product back to the store for a refund?
A: No!! This is only appropriate where you are certain that the product defect has not resulted in injury. Where there has been an injury, the defective product, its manuals and packaging may be important evidence of exactly what the defect was and how it caused the injury. Once these items are taken back to a store or sent back to a manufacturer, they are gone forever. That has a huge impact on your ability to seek any sort of civil remedy for the injury. The company may give you a refund for the product, but don�t count on any compensation for other damages, like medical bills or lost wages. The best course of action is to keep all parts of the product, including packaging, manuals, cords, etc. and take them to your attorney, so that they may be preserved as evidence, and examined by experts if necessary.
Q: I have heard that lawsuits are responsible for stupid warnings on products. Is that true?
A. Sometimes. In many cases, stupid senseless warnings on products that are circulated as part of internet lore are the result of fractured translation by foreign manufacturers. Sometimes they are just the result of hypersensitive companies, and sometimes they are required by industry or government regulation in our country or elsewhere. And sometimes they are the result of litigation. But for every case that resulted in a warning, be assured that a jury or judge somewhere, after listening to all of the evidence, believed that having such a warning, no matter how seemingly unnecessary, would prevent injuries in the future.