Archive for category Personal injury, auto accident, slip and fall law

I was in an accident, but not at fault. My insurance paid the claim. What about my deductible?


The insurer may go after a third party for your deductible, or authorize the insured to go after himself or herself.

The controlling statute is Texas Insurance Code Sec. 542.204. ACTION TO RECOVER DEDUCTIBLE. (a) Notwithstanding any other provision of this code and except as provided by Subsection (b), if an insurer is liable to an insured for a claim that is subject to a deductible payable by the insured and a third party may be liable to the insurer or the insured for the amount of the deductible, the insurer shall:

(1) take action to recover the deductible against the third party not later than the first anniversary of the date the insured’s claim is paid; or
(2) pay the amount of the deductible to the insured.
(b) An insurer is not required to take action or pay the amount of the deductible as required by Subsection (a) if, not later than the earlier of the first anniversary of the date the insured’s claim is paid or the 90th day before the date the statute of limitations for a negligence action expires, the insurer:
(1) notifies the insured in writing that the insurer does not intend to take further collection actions against the third party; and
(2) authorizes the insured to take further collection actions.
(c) This section applies regardless of whether the third party who may be liable for the amount of the deductible is insured or uninsured.

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How will I know if an insurance company has accepted or rejected my claim?


An insurance company generally has fifteen days to accept or reject a claim, or ask for more information. If there is a reasonable suspicion of arson, then the time extends to 30 days. If a claim is rejected, the insurance company is obliged to tell the claimant the reasons why.

The controlling statute is Texas Insurance Code Sec. 542.056. NOTICE OF ACCEPTANCE OR REJECTION OF CLAIM. (a) Except as provided by Subsection (b) or (d), an insurer shall notify a claimant in writing of the acceptance or rejection of a claim not later than the 15th business day after the date the insurer receives all items, statements, and forms required by the insurer to secure final proof of loss.
(b) If an insurer has a reasonable basis to believe that a loss resulted from arson, the insurer shall notify the claimant in writing of the acceptance or rejection of the claim not later than the 30th day after the date the insurer receives all items, statements, and forms required by the insurer.
(c) If the insurer rejects the claim, the notice required by Subsection (a) or (b) must state the reasons for the rejection.
(d) If the insurer is unable to accept or reject the claim within the period specified by Subsection (a) or (b), the insurer, within that same period, shall notify the claimant of the reasons that the insurer needs additional time. The insurer shall accept or reject the claim not later than the 45th day after the date the insurer notifies a claimant under this subsection.

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Legislative updates: New driving laws


SB 61 Requires children under the age of 8, or who are less than 4 foot 9 are required to be in booster seats.

HB 55 prohibits the use of a cellular telephone in an active school zone, unless the user is over 18, and using a hands free device.

HB 339 prohibits a driver under the age of 18 from using a cellular telephone while driving (either with or without a hands free device)

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Who can bring a lawsuit for wrongful death?


Wrongful death causes of action are controlled by Chapter 71 of the Texas Civil Practice and Remedies Code (CPRC).

Per Sec. 71.004, the surviving spouse, children, and parents of the deceased are the only ones who can bring an action for wrongful death.

If none of the individuals entitled to bring an action have begun the action within three calendar months after the death, then the personal representative of the estate shall bring and prosecute the action unless requested not to by all those individuals.

In most cases, it is advisable to have the wrongful death beneficiaries and the beneficiaries of the estate sign a family settlement agreement prior to taking any action.

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What happens if someone dies as a result of a DWI?


There are a number of things that can occur. On the criminal side, Texas Penal Code Sec. 49.08 make such action a second degree felony. The deceased person’s personal representative can also sue the drunk driver for wrongful death and for injuries that the deceased suffered before death.

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I was in an auto accident, but not at fault. The other driver didn’t have insurance. What can I do?


You have a few different options, depending on the type of insurance you carry. Your insurance may cover you, even though you weren’t at fault. Our office would have to review your policy to be sure. Even if the person does not have insurance, you may still be able to pursue a claim against the uninsured driver. Also, Texas law provides that if a person fails to maintain financial responsibility for an accident, in some cases, the state can revoke a person’s driver’s license until they pay for the damages they caused.

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The insurance adjuster hasn’t returned my calls after my accident. I’m hurt, should I wait before I see a doctor?


If you are hurt, then you are hurt, no matter what the adjuster says or does. If you are hurt, don’t worry about your case. See a doctor and have a check up. If the worst thing that happens is that the doctor says you are okay, than that is good news. On the other hand, if you wait, you may be aggravating an injury. What’s worse, insurance companies routinely take the position that if you wait more than a few days to seek medical attention, then you weren’t really hurt. They will reduce the amount they will pay accordingly.

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I was injured in a car crash, and it wasn’t my fault. Do I have to pay for a lawyer?


Many firms that handle car accidents will do so on a contingent fee basis. This means that if you don’t collect, they don’t get paid attorney fees. Contact Us for more information about auto accident cases in Texas.

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I was injured in an auto accident that wasn’t my fault. The other driver didn’t have any insurance. Can you still help?


You have a few different options, depending on the type of insurance you carry. Your insurance may cover you, even though you weren’t at fault. Our office would have to review your policy to be sure. Even if the person does not have insurance, you may still be able to pursue a claim against the uninsured driver. Also, Texas law provides that if a person fails to maintain financial responsibility for an accident, in some cases, the state can revoke a person’s driver’s license until they pay for the damages they caused. Please Contact Us for more information.

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What is EMTALA? What is patient dumping?


Patient dumping is when a hospital emergency room refuses to treat or diagnose an emergency situation on an individual due to their inability to pay (real or perceived.)

EMTALA is a federal law, 42 USC 1395 dd. It stands for the Emergency Medical Treatment and Active Labor Act, but is more commonly referred to as the “anti dumping act.”

This act states:

In the case of a hospital that has a hospital emergency department, if any individual (whether or not eligible for benefits under this subchapter) comes to the emergency department and a request is made on the individual’s behalf for examination or treatment for a medical condition, the hospital must provide for an appropriate medical screening examination within the capability of the hospital’s emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition [...]exists.

In general, this statute is designed to prevent certain hospital emergency rooms from refusing treatment to individuals based on their ability to pay. The statute provides for civil penalties if a hospital fails to comply with the statute.

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I was in an auto accident. What do I need to do?


The first thing you need to do is remain calm. Check yourself and your passengers to see if they are okay. You should also contact the police and request a police report. If you can safely move your vehicle out of traffic, you should. Do not give any statements about what happened to the insurance company until you have consulted with a lawyer.

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I need to pursue a claim on behalf of a deceased family member. I’ve been told I need to go through probate. What is that?


Probate is the process by which you prove that a person is deceased and who should be entitled to the deceased person’s property (including ownership of a lawsuit for injuries sustained prior to death.) The deceased is commonly referred to as the “Decedent” and the property of the Decedent is called the “Estate.” If the Decedent had a will, then the will needs to be taken to probate court where a judge will rule on the will’s validity (called a “prove up”). During this process, the judge will appoint (typically per the terms of the will) a representative of the Decedent’s estate. This person is called an “executor” of the estate. Contact us for more information.

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What are wrongful death and survivor suits?


If someone dies due to the act or omission of another, then there may be a cause of action by the heirs of the deceased for Wrongful Death. If the deceased suffered personal injury prior to death, then the deceased’s estate may have a cause of action called a survival claim. We can assist with either the prosecution of these matters. Some of the services include ancillary probate, appointment of personal representatives, appointment of an independent administrator of an estate, determination of heirs and determination of common law marriage. This also includes obtaining letters testamentary or letters of administration of an estate. Contact us if you have a situation that you would like to discuss in detail.

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I am shopping for an auto insurance policy. What do the coverages mean, and which ones should I purchase?


In dealing with personal automobile and commercial auto policies, many people need a quick primer on what the individual coverages actually mean. Here is a VERY brief overview of standard policy options, and what they mean. Please note that your policy will be much more detailed. YOU NEED TO READ YOUR POLICY AS IT MAY VARY.
 
1. Bodily Injury Liability – If covered, then the insurance will pay for losses if you are at fault in an accident and are legally responsible for others’ injuries. It does not cover your own injuries. This may include passengers in your car, drivers and passengers of the other car(s) and pedestrians involved in an accident. The policy is usually listed as per person / per accident. This means that any individual in the accident can collect up to the per person amount, but if there are several people in a common accident, they are capped by the per accident amount. Also, beware that there may be a family member limit on the policy which is lower than the per person amount. This coverage is mandatory. Presently minimum limits on this policy is $25,000 for purchased vehicles, and $100,000 for leased vehicles. If this is a commercial vehicle, then you MUST notify the insurance company that the vehicle is for commercial purposes.

2. Property Damage Liability – This means that the insurance company should pay for losses if you are at fault in an accident and are legally responsible for damage to another’s property. This is mandatory in Texas.

3. Uninsured/Underinsured Motorist Bodily Injury (UM/UIM BI)- If you are not at fault in an accident, and the other driver has no insurance (or not enough) then this coverage should provide for medical expenses for you and your passengers. Although this coverage is optional, it should not be avoided. Given the cost of the insurance versus the expense if you are in an accident with an underinsured motorist, it is strongly recommended.

4. Personal Injury Protection (PIP) – This should pay for expenses resulting from an auto accident for you or your passengers, regardless of fault. Eligible expenses generally include medical, funeral, disability and lost wages to the extent that they can be documented. This coverage is optional, but is strongly recommended.

5. Uninsured/Underinsured Motorists Property Damage (UM/UIM PD) – If you are not at fault in an accident this coverage should protect your vehicle if your vehicle is damage by a driver who does not have any and in some case not enough insurance. 

6. Medical Payments Coverage (MPC) – This optional coverage should pay for medical, dental and funeral expenses for you or your passengers, regardless of who is at fault. It is similar to PIP, but does not cover lost wages.

7. Comprehensive (comp) – This coverage should cover repair to your vehicle from damage caused by covered risks such as theft, vandalism and hail. This is typically required for financed and leased vehicles but not for purchased and paid for vehicles. If your car has any significant value, it may be a smart purchase.

8. Collision – This covers repair of your vehicle from damage caused in an accident, regardless of fault. It is typically required in financed purchases. If your car has any significant value, it may be a smart purchase.

9. Rental Reimbursement – This coverage helps pay for the cost of a rental car while your vehicle is being repaired as a result of a covered loss. This coverage is optional, but strongly recommended, especially if you use your car to get to/from/during work.

10. Towing – This coverage should pay to have your vehicle towed if it is disabled. This coverage may be duplicative of an auto club policy or a vehicle warranty.

11. Gap – This coverage applies if your vehicle is a total loss, and you owe more than your vehicle is worse. Although this is optional, it should be considered a mandatory purchase for any financed vehicle in which there is a possibility that you may owe more than the . Put simply, if you owe more than your car is worth, and it is totaled, you still have to pay the difference unless you have this coverage.

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