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Car Accidents

Car accidents are the most common type of traffic accident. However, getting injured in a car accident can be extremely disruptive, and even life-changing. Understanding your options following a car accident is the best way to make sure you are not taken advantage of by an insurance company, and prepare yourself to make strong decisions to ensure the best outcome for your case. Our team at FVF Law has helped over a thousand people understand their options, and determine whether hiring a personal injury lawyer is the best choice for them.

Injuries & Effects

While some car accidents are little more than “fender benders,” and thus cause little bodily injury, others are catastrophic, causing potentially irreparable physical harm. Relatively mild injuries such as muscular soreness typically pass after only a few days, while more serious damage such as broken limbs, bruises, and sprains require professional medical attention and treatment. In severe cases, car accident victims may suffer internal bleeding, spinal injury, and/or so-called traumatic brain injuries, which may have a life-long impact on their lives. Even when a trauma is relatively moderate, including for example a slight concussion or neck pain, it is imperative that victims seek medical assistance and care.

Many car accident victims suffer various symptoms of post-traumatic stress disorder (PTSD) after the crash. PTDS is “a psychiatric disorder characterized by a persistent maladaptive reaction that results from exposure to one or more traumatic events.” 1 In the event of a serious car crash, survivors sometimes experience heightened anxiety and fear, hypervigilance, disrupted sleep and nightmares, irritability, memory loss, numbness, and other types of cognitive impairment and emotional disorders. Researchers estimate that “between 15 and 45% of MVA [motor vehicle accident] survivors develop PTSD within the first year of the accident. Further, approximately 40% of those with PTSD following an MVA also suffer from major depression.” 2 Some scientific studies find that car crash survivors who perceive themselves as responsible or even culpable for the accident are less likely to experience PTSD symptoms. 3 One study found that the severity of an injury sustained during a car accident corresponds to a higher likelihood of experiencing PTDS. 4 In some cases, PTDS following a motor vehicle accident may be physically detectable in a structural alteration of the brain. Some magnetic resonance imaging (MRI) studies have found abnormalities specifically in the orbitofrontal cortex in patients with PTDS. Simply put, the traumatic experience of surviving a car accident may indeed affect a victim’s brain tissue in debilitating ways.

Car accident victims who suspect that the difficulties they are experiencing may be attributed to PTDS or other psycho-emotional conditions are often reluctant to contact a personal injury attorney. They may be avoidant regarding the impact that the accident is having on their lives. They may not want to admit to themselves or their family that coping with the devastating experience is difficult, and taking longer than anticipated. Anxiety and fear may be associated with shame, particularly for victims who prior to the crash thought of themselves as invulnerable. In these circumstances, a conversation with a personal injury attorney can be both instructive and encouraging. A personal injury attorney has the experience and expertise to move an injury victim past the helpless stage of fear and anxiety and into a plan for physical and financial recovery.

Taking Action at the Scene of an Accident

Car accidents are nerve-wracking, particularly when there is a physical injury as well as property damage. When an accident occurs, injured and distraught victims may have a difficult time discerning what concrete action to take at the scene. Nevertheless, it is in the victim’s best interest to take certain measures in the immediate aftermath of a crash.

The expert attorneys of FVF recommend you do the following after an accident:

1. Contact the police.

Despite common sense and decency, people do not always do the right thing after causing an accident. You should begin protecting yourself immediately after a crash to make sure you are treated fairly by the insurance companies involved. The police may have video and audio recordings (from the police car, body cameras, and body microphones) containing valuable evidence that might be needed later in the claim or lawsuit.

Under certain circumstances, police are required by law to complete a so-called a CR-3 report. This investigative report contains highly valuable information, such as identification of all the parties involved, insurance information, and an authoritative opinion of how the crash occurred. You might later need to rely on some of this information to help your case. Depending on the severity of the car crash, the police might complete a full accident investigation, including with photographs and measurements, which may later serve as valuable evidence if a lawsuit is necessary.

Finally, the police often interview witnesses to learn about the specific causes and circumstances of a crash. Through this process (and the investigative process in general) documents are created that can later be obtained through an Open Records Request, and which contain information that might be useful in the event of a dispute about liability. A personal injury attorney knows how to write and file an Open Records Request on a client’s behalf.

2. Collect the other driver’s contact, insurance, and driver’s license information.

Make sure that you include the driver’s name, address, phone number, vehicle information, and car insurance information.

3. Take pictures of the damage done to your car and the other car.

Have clear evidence of the damage by taking photos of your car, the other cars involved, and the surrounding scene and road conditions that precipitated the accident. Photographs of a car accident scene can, in some circumstances, help demonstrate the severity of the crash and how the car crash occurred. The more evidence you are able to preserve, the stronger your claim is likely to be.

4. Collect the contact information of any witnesses to the accident.

Write down the names, phone numbers, and other contact information of any eye witnesses at the scene. Personal injury victims sometimes rely too heavily on the police to record and preserve witness information. It is very common for a personal injury lawyer to have no other recourse than to try to identify witnesses by making an Open Records Request, and then extracting witness information from public records or 911 call recordings. If you have taken down witness information (name, phone number, and address), a personal injury lawyer can attempt to talk to witnesses soon after the crash while their memory is still fresh. This can make a significant difference in the outcome of a personal injury case. Witness testimonials are essential to helping attorneys and insurance companies determine liability in an accident.

As soon as you enlist the help of FVF attorneys, we begin working on your case. We carefully review all the details of the accident and develop a results-driven strategy. We have the expertise and resources to successfully manage both personal vehicle accidents and commercial motor vehicle accidents.

Contributory Conditions and Causes

Car accidents happen as a result of complex causes and circumstances, which is why investigating and litigating them can be difficult. There are environmental, situational, and individual factors to consider. The challenge is to identify and establish what precisely precipitated an unsafe situation in which the participants acted in ways that led to a crash. Generally speaking, “road safety is achieved when the ‘driver-road- vehicle system works well. Among these three elements, the driver, without any doubt, may best affect the proper functioning of the interaction.” 5 There are four basic driving styles, all of which may involve a certain level of risk for accidents and personal injury:

  1. reckless and careless driving
  2. anxious driving
  3. angry and hostile driving
  4. patient and careful driving 6

According to the National Highway Traffic Safety Administration (NHTSA), some of the most prevalent causes of car crashes are distracted driving, speeding, and alcohol- or drug-impaired driving.

Distracted Driving

In 2015, 3,477 people were killed and almost 400,000 were injured in motor vehicle crashes involving a distracted driver. A driver may be distracted by any activity that diverts attention from the multiple cognitive and motor skills involved in operating a moving vehicle: talking with people in the car, eating or drinking, adjusting the audio-controls (stereo), or manipulating navigation technologies. As experts attest, “Inattention and driver distraction due to secondary task engagement are among the leading cases of motor vehicle accidents.” 7

An alarmingly common form of distraction is “texting,” or using a handheld electronic communication device to send and receive text messages. A substantial body of research indicates that cell phone use interferes with the driving task, including an increase in reaction time, the deterioration of speed control, the increased variation of lateral control (swerving through lanes), the limitation in the allocation of visual attention, and a failure to detect relevant traffic signals. 8 A 2017 research study found that drivers “who self-reported being involved in one or more crashes that were, or could have been, police-reported in the past three years, were talking and listening on the hand-held cell phone 75.05 times as often as drivers who were not in crashes that were, or could have been, police-reported.” 9

According to the National Highway Traffic Safety Administration, “Sending or reading a text takes your eyes off the road for 5 seconds. At 55 mph, that’s like driving the length of an entire football field with your eyes closed. During daylight hours, approximately 660,000 drivers are using cell phones while driving. That creates enormous potential for deaths and injuries on U.S. roads.” 10

According to the National Occupant Protection Use Survey (NOPUS), which provides the only nationwide probability-based observed data on driver electronic device use in the United States, there are three types of driver electronic device use: “holding phones to their ears,” “speaking with visible headsets on,” and “visibly manipulating handheld devices.” 11 Each one presents a significant risk to the driver, passengers, and others on the road. And so-called handsfree technology assistants do not significantly reduce the risk of an accident.

Of all driving age groups, teens are most commonly reported as distracted at the time of a fatal crash, including and especially by handheld devices. According to the journal Accident Analysis and Prevention, “close to 88% of adolescents have access to cell phones, and 90% of teenagers with cell phones report exchanging text messages. This high rate of usage also translates to in-vehicle use, with nearly 75% of young drivers who report using a cell phone while driving.” 12

Speeding

Speeding accounts for nearly one third of traffic fatalities, with more than 10,000 deaths per year. And while speed limits are set to protect everyone on the road, it is imperative that drivers also consider contingent circumstances such as weather, narrow lanes and construction impositions, etc. In other words, these are temporary contextual factors (snow, fog, etc.) that may make driving within the speed limit hazardous at certain times. According to the NHTSA, the consequences of speeding are:

  • Greater potential for loss of vehicle control;
  • Reduced effectiveness of occupant protection equipment;
  • Increased stopping distance after the driver perceives a danger;
  • Increased degree of crash severity leading to more severe injuries;
  • Economic implications of a speed-related crash; and
  • Increased fuel consumption/cost. 13

Speeding has been studied by safety researchers as a type of aggressive driving, which is an unsafe driving practice. As noted in the journal of Transportation Research, “an aggressive driver takes a driving behavior characterized by high speed together with numerous and sudden changes of the instantaneous speech, which case sudden accelerations and decelerations.” 14 “Speech and acceleration rates are primary parameters in the estimation of road safety conditions.” 15

Drivers who violate legal speed limits are endangering others with their aggressive behavior and poor judgment. Car accident victims who have been injured as a result of an aggressive driver’s conduct are entitled to compensation for losses and damages, and should contact a personal injury attorney.

Alcohol-Impaired (and Drug-Impaired) Driving

In the United States, more than 10,000 people are killed in drunk-driving crashes every year, or approximately 29 people per day, or 1 every 50 minutes. 16 One third of all traffic accident fatalities involves an intoxicated driver. The reason why alcohol is such a threat to driver safety is that the substance impairs a driver’s central nervous system, brain function, reasoning, and muscle coordination. All of these capacities are essential to safe driving. The problem is tragic and tremendously costly, billing at over 40 billion dollars per year.

The level of alcohol that a driver has in his/her system is measured by a breathalyzer instrument, which registers Blood Alcohol Concentration, or BAC. At a BAC of 0.02 grams of alcohol per deciliter of blood (g/dL), a driver experiences loosened inhibitions, loss of judgment, decline in visual function, and decline in the capacity to perform multiple tasks at once. At a BAC of 0.05g/dL, a driver exhibits exaggerated behaviors, reduced coordination, loss of small-muscle control (including eye muscles) and lowered alertness. At a BAC of 0.10g/dL or higher, there is a clear deterioration of reaction time, slurred speech, slowed thinking, loss of balance, and reduced ability to maintain lane position. According to the National Highway Traffic Safety Administration, “even a small amount of alcohol can affect driving ability. In 2016, there were 2,017 people killed in alcohol-related crashes where drivers had lower alcohol levels (BACs of .01 to .07 g/dL).” 17 At any level, alcohol-impaired driving is dangerous and unlawful.

Drug-impaired driving is a public safety hazard that is rapidly growing in scope nationwide. Drivers who are impaired by drugs are just as dangerous as drivers who are impaired by alcohol. The Center for Behavioral Health Statistics and Quality reports that driver safety may be impaired by various illicit drugs, include marijuana (and hashish), cocaine (and “crack”), heroin, hallucinogens, and inhalants, as well as the nonmedical use of prescription pain relievers, tranquilizers, stimulants, and sedatives. 18Approximately 4,000 people are killed annually in catastrophic accidents involving a driver who tested positive for drugs, and health experts believe that this figure is radically understated.

Anyone who has been hurt in a motor vehicle incident involving alcohol, drugs, or illicit substances should seek legal counsel. The process of gathering evidence and presenting an argument for the recovery of losses and personal injury is complicated, and requires extensive experience with medical experts, law enforcement procedures, and compelling documentation.

Medical Care following a Car Accident

The attorneys at FVF encourage all victims of car accidents to seek medical care as soon as possible, even for injuries that seem minor. Some injuries may not appear until hours, days or even weeks after the accident. Brain injuries, for example, can be hard to diagnose because the symptoms are usually subtle and not visibly apparent. It is always a good idea to have a doctor monitor an injured person’s symptoms regularly to make sure that injuries do not develop into serious conditions.

While many personal injury victims might not be sure whether their injury warrants medical care, it is better to be safe than sorry for several reasons:

First, the law allows you to seek compensation for your losses associated with bodily injuries. This includes your losses leading up to a settlement or trial, as well as any losses you can prove you will likely have in the future. To fully understand and prove what those losses are, you must understand the extent of your injury. To fully understand the extent of your injury, you must be proactive with your medical care and work with someone qualified to diagnose your bodily injury. Since many permanent injuries do not seem that bad in the beginning, it is important to explore all injuries, even those that might seem like they will resolve on their own.

Second, if you are not proactive about getting medical treatment, you will potentially create a “treatment gap.” Insurance companies will find any reason they can to deny or undervalue a personal injury victim’s bodily injury claims. When there is a large lapse of time after a car crash before you have sought medical care, or large gaps in your medical care, there is a much higher chance the insurance company will refuse to fully compensate you for losses without a long, difficult fight.

Finally, and most importantly, FVF wants you to get better and to gain full use and function of your body. The best way for you to get better is to put your medical care in the hands of a medical professional who can help guide your recovery.

Bodily Injury Insurance Claims

There are a variety of options for car accident victims to offset the cost of the medical care that they need, whether or not they themselves are covered by a medical insurance policy.

Individuals with health insurance who would be financially burdened by their co-pays or deductibles, or those who do not have health insurance, can often work with medical providers who will agree to accept payment for their services once a patient has settled or otherwise resolved a personal injury case. Also, many people have a type of insurance coverage called “Personal Injury Protection” (PIP) or “Medical Payments Coverage” (MedPay). In some instances, PIP or MedPay can be useful tools to help you pay for your medical treatment after an injury.

The various kinds of bodily injury insurance policies involved in a car accident case are exceedingly complex, and require patient and knowledgeable navigation. The purpose of obtaining representation from a personal injury attorney is that he/she is able to advise a client through potentially expensive and overwhelming documents and procedures.

Bodily Injury Liability Coverage

A careless driver’s insurance company is responsible for paying for any bodily injury caused to a car crash victim because of the crash. Texas drivers are required to carry a minimum of $30,000 worth of insurance to pay for injuries caused to any single car crash injury victim, and $60,000 worth of insurance to pay for all the injuries caused to all victims of the crash. In other words, if there are two or more victims in one car crash (not counting the careless driver), each car crash injury victim has at least a $30,000 pool of money from which to seek compensation. However, there might only be $60,000 available to pay for all the bodily injury done to all the car crash injury victims. Of course, it is common for a careless driver to maintain bodily injury liability coverage that exceeds Texas’s $30k/$60k minimum coverage requirements. The categories of damages a careless driver’s insurance company might be required to pay to compensate a car crash injury victim for their bodily injuries include: 1) compensatory damages; and 2) punitive damages.

Compensatory damages are typically composed of two sub-categories: 1) economic damages; and 2) non-economic damages. Compensatory damages include compensation for losses the car crash injury victim has sustained up to the point of settlement or trial, as well as any losses the victim will likely sustain in the future. Punitive damages, on the other hand, are a monetary civil penalty designed to punish a reckless driver for their egregious conduct. While compensatory damages are generally not capped in Texas, punitive damages are.

A Hospital Lien

In Texas, hospitals have the legal right to file a lien in the county where they provided emergency medical services to a personal injury victim. The purpose of the lien is to protect their bill for services provided in connection with the injury. In the event the personal injury victim is able to reach a settlement or otherwise recover money from the careless person’s insurance, the insurance will not pay the personal injury victim until they know the hospital’s bill has been paid. This lien is very similar to a lien a bank would have if they loaned money to someone to buy a home or a car. The person could not sell the home or the car without paying the bank back. Similarly, the personal injury victim cannot settle their case with a liability insurance company without paying the hospital back.

Unfortunately, it is common for hospitals to abuse the hospital lien. When a hospital knows a personal injury victim has been injured in a car crash, the hospital sees an opportunity to get paid more for their services by asserting a lien against the victim’s settlement. This is particularly true when the personal injury victim has health insurance. Rather than submit the injury victim’s bill to health insurance, where the hospital will likely be required to substantially reduce their bill, the hospital will simply file a lien, notify the liability car insurance company, and hold a settlement hostage until the lien has been resolved. By doing this, the hospital argues that they are owed the full billed amount, rather than the reduced amount they would have received if the bill had been submitted to health insurance. With proper guidance, however, this scheme can be successfully overcome.

By speaking to a personal injury lawyer, a crash victim can learn what his/her options are for handling a hospital bill and dealing with a hospital lien. If the personal injury victim waits too long to take action against the hospital lien, the victim might lose very important options, including the ability to force the hospital to submit the bill to the victim’s health insurance. A mistake like this can cost thousands, even tens of thousands of dollars.

Auto-Insurance

Even if a car crash is caused by the carelessness of another driver, an injured victim’s own auto insurance might play a very important role in the victim’s case. When car crash injury victim files a claim on his/her own insurance, this is called a “first-party” claim. There are four common types of first-party insurance coverages a car crash injury victim might utilize through their own auto insurance: 1) Collision coverage; 2) Un-insured or Underinsured Motorist coverage; 3) Personal Injury Protection coverage; and 4) Medical Payments coverage.

Collision Coverage

When a car crash injury victim’s vehicle is damaged by a careless driver, the victim can also seek to have their vehicle repaired or replaced by their own auto insurance carrier. Collision coverage functions very similarly to the careless driver’s Property Damage Liability coverage, since the car crash injury victim’s own auto insurance company is required to pay to either repair or replace the vehicle depending on whether the vehicle is a total loss. Similarly, if the car crash injury victim maintains additional Rental Car Reimbursement coverage, their own auto insurance company will be required to place the victim in a rental car for some period of time that is defined by the insurance policy. The car crash injury victim can also seek payment of the diminished value of their vehicle from their own auto insurance carrier. Whether a car crash injury victim should use their own auto insurance policy or rely on the careless driver’s auto insurance policy really depends on the circumstances of each case, as there are pros and cons with each. For example, the careless driver’s insurance company will not automatically accept responsibility for the reckless conduct of one of its customers, and will often investigate the facts of the case before offering to pay any damages to the car crash injury victim. This can cause significant delays in getting the vehicle repaired or replaced, as well as delays in placing the car crash injury victim into a rental car. Additionally, the careless driver’s insurance company will often request the car crash injury victim provide a recorded statement of how the crash happened. This is generally ill-advised, as the statement can later be used by the insurance company against the car crash injury victim.

On the other hand, some car crash injury victims do not carry collision coverage or rental reimbursement coverage. In these circumstances, the injury victim has no choice but to rely on the careless driver’s insurance company to handle the property damage claim.

Additionally, even if the car crash injury victim has collision coverage, the victim will often have to pay a deductible to get the claim processed (though this is often reimbursed later), and can, in some cases, see an increase in their premiums after filing a claim.

Uninsured or Underinsured Motorist Insurance

Uninsured Motorist and Underinsured Motorist Coverage (UIM) is a first-party coverage designed to protect a car crash injury victim in the event they are injured by a careless driver who does not have enough liability insurance coverage to pay for all the damage caused. Essentially, if a car crash injury victim has purchased UIM coverage, they have purchased some amount of coverage that stacks on top of whatever liability coverage the careless driver has purchased. Since Texas only requires drivers to maintain $25,000 in property damage liability coverage and $30,000/$60,000 in bodily injury liability coverage, buying UIM coverage (as much as one can afford) is a very good idea.

Like the careless driver’s bodily injury liability coverage, the car crash injury victim’s UIM coverage will pay for the victim’s compensatory damages that exceed the careless driver’s liability coverage. In other words, if a car crash injury victim sustains $50,000 worth of compensatory damages in a car crash, and the careless driver only maintained a $30,000 bodily injury liability policy, the victim’s UIM insurance typically pays the $20,000 difference. Similarly, if the car crash victim sustains $50,000 worth of property damage, and the careless driver only maintained a $25,000 property damage liability policy, the victim’s UIM insurance should pay the $25,000 difference.

UIM insurance is most often used in cases where the car crash injury victim has sustained a severe or permanent injury, and the careless driver does not have sufficient insurance coverage to pay for the damage. Additionally, UIM insurance can be important in car crashes involving multiple victims, where the careless driver does not have enough insurance to go around. Finally, UIM insurance can be very important when the car crash injury victim is hurt by a careless driver who does not have insurance, or flees the scene and cannot be identified.

Personal Injury Protection and Medical Payments Coverage

Personal Injury Protection Coverage (PIP) and Medical Payments Coverage (MedPay) are types of “no-fault” insurance. This means the car crash injury victim’s auto insurance is required to pay PIP or MedPay benefits even if the victim caused the crash. It is best to think of PIP and MedPay insurance as a trust fund that the car crash injury victim can utilize to pay their medical bills and offset their lost earnings after a car crash. Still, a car crash injury victim who has MedPay, rather than PIP, can only seek payment of medical bills. Access to PIP and MedPay funds is intended to be quick and stress-free, though this is often not the case. PIP and MedPay insurance are generally sold as $2,500, $5,000, or $10,000 policies, though sometimes higher. A car crash injury victim who has PIP or MedPay insurance can file a claim for payment of funds even when they are a passenger in another vehicle. Also, all passengers in a car crash injury victim’s car can seek payment under the victim’s PIP or MedPay policy.

The significant differences between PIP and MedPay are important to understand. First, as previously noted, MedPay does not help a car crash injury victim with lost earnings after a crash, while PIP does provide this service. Second, the car crash injury victim’s insurance has “subrogation rights,” or the right to be paid back with MedPay coverage, but not with PIP. This is important when the car crash injury victim was injured by the careless of another, and the victim is able to obtain compensation from the careless driver’s insurance. In that case, if the car crash injury victim has received MedPay payments for medical bills, the victim might have to reimburse their auto insurance carrier for those payments that have been received.

Repair and/or Replacement of Personal Vehicle

Whether the careless driver’s insurance will pay to repair or replace a car crash injury victim’s vehicle depends on whether the vehicle is a total loss. Under Texas Law, a vehicle is required to be deemed a total loss when the cost of repairing the damage exceeds the value of the vehicle immediately before the damage. However, some insurance companies deem a vehicle to be “totaled,” even when the repairs would cost less than the value of the vehicle under other circumstances, such as if the vehicle could not be repaired safely.

If the car crash injury victim’s vehicle is a total loss, the insurance company is required to pay the victim the cash value of the vehicle as it existed immediately prior to the damaging incident. The actual cash value will be based in part on factors such as the vehicle’s age, condition, mileage, and upgrades. In addition, the careless driver’s insurance company will pay for additional tax, title and registration costs that the car crash injury victim will incur when he/she eventually purchases a new vehicle.

If the car crash injury victim’s vehicle is not a total loss, the insurance company is required to pay for repairs to the vehicle. Under the Texas Department of Insurance Consumer Bill of Rights, the car crash injury victim has the right to choose the repair shop and replacement parts for their vehicle within
certain limits.

Loss of Use of Motor Vehicle

Whether the injured victim’s motor vehicle was a total loss or can be repaired, the careless driver’s insurance company is required to pay the victim for the value of the victim’s inability to use their motor vehicle. The law in Texas is murky on what exactly this means for traffic accident victims, but this typically requires a careless driver’s insurance company to pay for a rental car.

Unfortunately for car crash victims, many insurance adjusters still believe that “loss of use” (i.e., the rental-car claim) is not owed under Texas law in the event of a total loss. And while this was a tenable assumption in the past, the Texas Supreme Court decided in 2015 (J&D Towing, LLC vs. American Alternative Insurance Corp) that the standard is “reasonableness.” The insurance company must allow a reasonable amount of time to arrange the purchase of a new vehicle. Adjusters who claim not to owe insured parties for “loss of use” ought to refer to the “J&D Towing” case, in which it was concluded that “reasonable” is in the eye of the beholder.

Diminished Value of a Vehicle

In the event the an injured party’s vehicle can be repaired, the vehicle is often worth less money on the fair market after a car crash than it was prior to the incident. This is because of reporting services such as CarFax, where prospective buyers and auto dealers learn about past damage to a vehicle; for dealers and buyers, a stigma is attached to the value of vehicles that have been repaired after a traffic accident. “Diminished value” means the difference in the fair market value between the vehicle as it was immediately prior to the crash, and the fair market value of the vehicle after it has been repaired. Proving diminished value can be difficult, and often requires the car crash victim to employ a third-party adjuster to provide an opinion on the change in the vehicle’s value.

This is a difficult position to be in, and a sound reason to obtain legal representation. Because insurance companies are only required to pay the replacement value (i.e., what the car crash victim’s totaled car was worth immediately before the crash), insurance companies are generally not responsible to pay off the car crash victim’s full car loan when the balance is higher than the replacement value. However, some car crash victims maintain GAP coverage through their bank, which covers the difference in the event the victim is “under water” on their loan. Additionally, the accident victim can in some circumstances work with their bank to roll the remaining principal balance into a new loan when the victim purchases a new vehicle.

Property Damage Insurance and Claims

Car accidents that are severe enough to inflict physical injury almost always involve extensive damage to vehicles and other property.

Property Damage Liability Coverage

When a driver carelessly crashes into someone, his/her insurance coverage will pay for any damage done to the crash victim’s personal property. In Texas, drivers are required to carry at least $25,000 in coverage to pay for property that they destroy. A car accident victim can usually recover money for up to four types of property damage: 1) repair or replacement of the damaged vehicle; 2) repair or replacement of any other property that was damaged in the car crash; 3) loss of use of the vehicle; and 4) diminished value of the vehicle.

Choosing What Insurance to Rely on

Car crash victims are sometimes faced with the difficult decision of whether or not to file a claim on their own full-coverage auto-insurance. Depending on the circumstances of the accident, victims who have full coverage on their damaged or totaled vehicle have more options than victims who have no insurance or liability insurance only.

Those with full coverage on their vehicle have are two options. They can either rely on the careless driver’s insurance company to handle the property damage and rental car via a liability policy; or they can rely on their own insurance company to handle the property damage. Those whose policy does not include rental coverage will have to either rely on the at-fault driver’s insurance to provide a rental car, or pay for a rental car out of pocket and later seek reimbursement.

If a car crash victim uses his/her own insurance, it is less likely that there will be delays in processing the property damage claim and placing the victimized person or family into a rental car (assuming that the policy includes rental car coverage). However, the crash victim will likely pay a deductible, and face the possibility of an increase in insurance premiums. If the victim relies on the careless driver’s liability insurance, they are to some extent at the mercy of that insurance company. Because the careless driver’s insurance company is allowed to investigate the circumstances of any car crash, and the careless driver might not always be honest about what happened, the car crash victim will frequently be required to wait until a police report has been completed and filed before the careless driver’s insurance company will take responsibility for the crash. This can cause significant delays in the victim’s ability to get a vehicle repaired or replaced, and the victim’s ability to get a rental car.

Insurance contracts require those who have been involved in a collision to notify their insurance provider. Failure to do so may in limited circumstances result in refused coverage for an incident-related claim.

The At-fault Driver’s Insurance

In Texas, the at-fault driver’s insurance company is saddled with rights and responsibilities when their insured has injured somebody in a car crash.

When an insurance claim is filed, the negligent driver’s insurance company investigates how the crash happened and what, if any, injuries were sustained by any of the car crash victims. During this investigation, the insurance company typically contacts injured parties to a recorded statement. If you provide a recorded statement, you could unknowingly say something on record that can later be used against you. This could include statements relating to vehicle speeds, amounts of time that passed between events, and distances between objects. You could in good faith be trying to give an honest answer and might under-estimate or over-estimate the information in a way that could make you appear to have some causal responsibility for the crash. Or, you might make statements that minimize the extent of your bodily injury before there has been an opportunity for you to have your bodily injuries properly evaluated.

Claims on Other Damaged Property

In the event damage was caused to the car crash victim’s personal property other than the vehicle itself, the careless driver’s insurance company is also obligated to repair or replace that property. Common examples of damaged property include child seats (which must be replaced in the event of a car crash), eyeglasses, cell phones and tablets, and portable computers. To get reimbursed for damage to the car crash victim’s personal property, the victim must present evidence of the cost of repair or replacement of the property. This is typically done by taking the personal property to a retailer or repair shop and obtaining a repair or replacement estimate.

Attorney Representation for Injured Crash Victims

In Texas, a car crash victim who is injured by the carelessness of another driver has the right to seek compensation for the losses they sustain. The law that protects car crash victims, however, is full of complexities and ambiguities. Moreover, every car crash is a bit different, giving rise to an overwhelming confluence of contributory factors and circumstances. The journal of Accident Analysis and Prevention notes that, “Given the unpredictable variations that play a role in each incident, it is exceedingly difficult to accurately predict and account for the unexpected injury and risk severity outcome.” 19

Injured crash victims often believe that it would be easy and expedient to handle a car accident case on their own. Based on good faith, they believe the insurance companies will treat them fairly, and adequately compensate them for their losses. And yet, especially for crash victims who have sustained a permanent injury (whether they know it or not), obtaining full compensation can be difficult, time- consuming, and costly. Simply submitting medical bills for reimbursement often does not ensure that car crash victims receive the compensation to which they are legally entitled. It is often imprudent for a crash victim to allow an insurance provider to convince him/her to settle the case prematurely. It is imperative that victims understand the scope and impact of their case. The purpose of this page is to provide car crash injury victims basic guidance in order to help determine whether they should contact a personal injury attorney to discuss viable options.

It is important to note that, because Texas law puts car crash victims who have only sustained damage to their property in a difficult position, personal injury attorneys will typically not represent a crash victim who has sustained property damage but no bodily injury. The purpose of a personal injury attorney is to advocate on a matter of some contention; and there is usually very little to argue about when it comes to the value of a property damage case. A personal injury lawyer can do very little to help increase an individual’s recovery in a property damage case because the value of vehicle damage is
pretty easily determined.

If you have been involved in an accident with no physical injury involved, but nevertheless intend to hire a personal injury lawyer, you will either have to pay the attorney hourly, or pay him/her a percentage of the damaged vehicle’s value. Since Texas does not allow a successful car crash claimant to recover their attorneys’ fees, hiring a personal injury lawyer to represent them for a claim involving only property damage will usually be a losing proposition.

References

1 Chun Chu, et al., “Cortical Folding in Post-traumatic Stress Disorder After Motor Vehicle Accidents: Regional Differences in Gyrification,” Psychiatry and Clinical Neurosciences 71 (2017): 247.

2 Angela Nickerson, et al., “The Role of Attribution of Trauma Responsibility in Posttraumatic Stress Disorder Following Motor Vehicle Accidents,” Depression and Anxiety 30 (2013): 483.

3 R. Ho, G. Davidson, M. Van Dyke, and M. Agar-Wilson, “The Impact of Motor Vehicle Accidents on the Psychological Well-Being of At-Fault Drivers and Related Passengers,” Journal of Health Psychology 5 (2000): 33-51.

4 Angela Nickerson, et al., “The Role of Attribution of Trauma Responsibility in Posttraumatic Stress Disorder Following Motor Vehicle Accidents,” Depression and Anxiety 30 (2013): 486.

5 Laura Eboli et al., “How to Define the Accident Risk Level of Car Drivers by Combining Objective and Subjective Measures of Driving Styles,” Transportation Research 49 (2017): 29.

6 O. Taubman-Ben- Ari, M. Mikulincer, and O. Gillath, “The Multidimensional Driving Style Inventory: Scale Construct and Validation,” Accident Analysis and Prevention 36 (2004): 323-332.

7 Lisa Precht, Andreas Keinath, and Josef F. Krems, “Identifying the Main Factors Contributing to Driving Errors and Traffic Violations: Results from Naturalistic Driving Data,” Transportation Research 49 (2017): 50.

8 Xiaomeng Li et al., “A Rear-End Collision Risk Assessment Model Based on Drivers’ Collision Avoidance Process under Influences of Cell phone Use and Gender,” Accident Analysis and Prevention 97 (2016): 2.

9 Lisa Precht, Andreas Keinath, and Josef F. Krems, “Identifying the Main Factors Contributing to Driving Errors and Traffic Violations: Results from Naturalistic Driving Data,” Transportation Research 49 (2017): 63.

10 NHTSA – Distracted Driving

11 Electronic Device Use

12 Stephen S. O’Connor, Lindsey M. Shain, Jennifer M. Whitehill, and Beth E. Ebel, “Measuring a Conceptual Model of the Relationship Between Compulsive Cell Phone Use, In-vehicle Cell Phone Use, and Motor Vehicle Crash,” Accident Analysis and Prevention 99 (2017): 373.

13 NHTSA – Speeding

14 Laura Eboli, Gabriella Mazzulla, and Giuseppe Pungillo, “Combining Speed and Acceleration to define Car User’s Safe or Unsafe Driving Behavior,” Transportation Research 68 (2016): 113.

15 Laura Eboli, Gabriella Mazzulla, and Giuseppe Pungillo, “Combining Speed and Acceleration to define Car User’s Safe or Unsafe Driving Behavior,” Transportation Research 68 (2016): 114.

16 Drunk Driving

17 Drunk Driving

18 Center for Behavioral Health Statistics and Quality. (2015). Behavioral health trends in the United States: Results from the 2014 National Survey on Drug Use and Health (HHS Publication No. SMA 15-4927, NSDUH Series H-50). Retrieved from LINK.

19 Darren Shannon, et al., “Applying Crash Data to Injury Claims: An Investigation of Determinant Factors in Severe Motor Vehicle Accidents,” Accident Analysis and Prevention 113 (2018): 252.

Hit and Run Accidents

Compensation, coverage and more.

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Texting While Driving

Injuries, concerns, representation and more.

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Uninsured Motorist Claims

Uninsured, under insured and more.

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