A car accident is a traumatic event that can result in a great deal of shock and pain.
An accident can also cause you no small amount of financial distress. The situation can get even worse if you discover that a plaintiff is suing you for the accident.
Regardless of whether the accident was your fault or the plaintiff’s fault, you need to act promptly to protect your interests.
Texas law requires every driver with an automobile registered in Texas to carry at least the following amount of insurance:
Some drivers carry more than the minimum insurance coverage.
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Texas is an “at fault” auto insurance state. That means you can file a claim against the at-fault driver immediately. To do so, you would file a third-party claim against their liability insurance policy or file a lawsuit in court.
Normally, you would file a lawsuit only if the insurance company refuses to deal with you fairly. If Texas were a “no-fault” auto insurance system, the other driver would probably look to their own insurance to pay their claim.
Unfortunately, some drivers carry no insurance at all, despite the legal requirement to do so. Fortunately, fewer than 10% of Texas drivers are uninsured, one of the lowest rates in the nation.
Nevertheless, drivers who are uninsured tend to cause more than their share of accidents. Typically (although not universally), such people have bad driving records. Insurance companies often refuse to insure people with bad driving records.
In a direct action state, if you have a car accident claim, you can directly sue the at-fault driver’s liability insurance company. Neighboring states, such as Louisiana, are direct action states. Texas is not. In Texas, someone who believes they have a valid claim against a driver must sue the driver directly instead of suing the insurance company.
You don’t necessarily have as much to worry about as you think if a plaintiff (injured party) sues you directly for a car accident. Your liability insurance company is obligated to help defend you against the lawsuit and even provide you with a lawyer.
Even if they were not so obligated, they would have every incentive to do so. It is the insurance company that would pay any judgment against you, at least up to their policy limits.
The only time you would face personal liability is if the judgment against you exceeds your insurance coverage. In that case, you would face a deficiency judgment, which is a debt that equals the amount of the claim against you minus the amount of your liability insurance company’s policy limits.
What if you cannot afford to pay this debt? After all, a catastrophic injury could result in a judgment of hundreds of thousands or even millions of dollars. Texas will treat this type of debt just like any other debt. In a worst-case scenario, you might have to declare bankruptcy. In a best-case scenario, the plaintiff will not even bother pursuing the debt against you because they don’t believe you could ever pay it anyway.
Following is a specific list of steps to take when another driver sues you for an accident:
To initiate the lawsuit, the defendant must have had a neutral third party “serve the papers” on you., Normally, the third party must do this in person; they must physically place the papers in your hand. “Papers” in this context means a summons and a copy of their complaint.
Once you receive the summons and the complaint, you have 20 days from the date you receive them to file a formal written answer. Your lawyer should draft the answer for you because it is a formal legal document that needs to be written exactly correctly.
If you believe the accident was the other party’s fault and your lawyer agrees with you, you can include a counterclaim in your answer.
Your lawyer should send a letter to all parties involved in your lawsuit. The letter directs them to direct all further correspondence of any sort to your lawyer, not you. This will bring you some peace of mind.
You can try to turn the tables on the party who is suing you. Under Texas law, accident victims cannot recover compensation if they are found to be 51% or more at fault. If you can bring enough evidence to demonstrate that the plaintiff was mostly to blame, you will not be on the hook for money damages.
You can gather evidence that is in the other party’s possession through the court-supervised pretrial discovery process. This process takes place under oath but out of court. It includes opportunities for cross-examination and written questions, among other legal weapons that will be placed at your disposal. The plaintiff can use the same legal weapons against you.
In a best-case scenario, this will provide you with enough evidence to defeat the claim against you.
An affirmative defense is a defense that you plead and prove yourself. The burden of proof is on you, not the plaintiff. Following are some common affirmative defenses:
You can also dispute causation, Causation is not an affirmative defense; rather, it is the plaintiff who must assert and prove causation. All you have to do is deny them that proof. Your job would be to convince the court that the accident would have happened no matter what you would have done.
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