Call Now
713-521-0059
Three things, in most cases. Who was at fault and by what percentage. How much insurance coverage exists, including on your own policy. And what your medical treatment was actually paid or incurred at, which in Texas is not the same as what you were billed.
Proof of all three goes stale fast. Vehicles are salvaged with the event data recorder still inside, and nearby surveillance is overwritten within weeks. Do not release the at-fault driver without your own carrier’s written consent. Call 713-521-0059.
Texas apportions responsibility by percentage. Under Section 33.001 of the Civil Practice and Remedies Code, a claimant found more than 50 percent responsible recovers nothing. Otherwise, Section 33.012 reduces the award by the claimant’s percentage of responsibility, and a claimant at exactly 50 percent is still reduced.
The rule is stated correctly as more than 50 percent, not as 51 percent. The difference matters when a jury apportions fault in fractions. It is also why the evidence of how the crash happened deserves attention from the first day. Photographs, the crash report and witness names all bear on your percentage.
Commonly recovered expenses and damages include:
Section 41.0105 limits recovery of medical or health care expenses to the amount actually paid or incurred by or on behalf of the claimant. The billed charge alone is not the figure your claim is valued on. What counts is every dollar actually paid or incurred on your behalf. Finding all of them means going back to the source records and bills rather than working from a summary, and that is our job, not yours.
Reasonableness and necessity of the charges can be supported by affidavit under Section 18.001 instead of live testimony from every provider, unless a controverting affidavit is properly served. That section states expressly that the affidavit is not evidence of causation. It will not by itself connect the treatment to the crash.
Get the care you need, from whoever is right for the injury. We do not tell clients where to seek treatment. Follow medical advice, not litigation strategy. Gaps in treatment are used against injured people, and so is treatment that looks driven by a lawsuit.
Watch the bills, not just the care. How a bill is paid, by health insurance, by a letter of protection or out of pocket, changes what can be recovered. That is a decision worth making on purpose rather than by default. Future care has to be proven too. A surgery you will need in five years is recoverable, but only with medical evidence of reasonable probability and cost.
Texas minimum limits are low. In a serious injury the at-fault policy is often used up at once, and the recovery has to come from somewhere else. Usually that is your own uninsured and underinsured motorist coverage. It sits on your own policy, it applies when the other driver has no insurance or not enough, and it is not a claim against the other driver. It is often the most valuable coverage in a serious crash, and one of the most overlooked.
It also does not work the way people expect. Brainard v. Trinity Universal Insurance Co., 216 S.W.3d 809 (Tex. 2006) addresses when a UIM insurer must pay. It holds that a UIM insurer has no contractual duty to pay until the trial court signs a judgment establishing the liability and underinsured status of the other motorist. Until then nothing is owed under the policy, and attorney fees under Chapter 38 cannot be triggered before that judgment.
Prejudgment interest works differently. Brainard treats the interest that accrued on the damages against the other driver as part of what the insured is legally entitled to recover. So it is included in the UIM payment, within the policy limits.
Allstate Insurance Co. v. Irwin, 627 S.W.3d 263 (Tex. 2021) then held that an insured may obtain a declaratory judgment establishing liability and damages in a UIM case. The insured may also recover attorney fees under Chapter 37, in the trial court’s discretion. USAA Texas Lloyds Co. v. Menchaca, 545 S.W.3d 479 (Tex. 2018) sets out the framework governing when a policy benefit can be recovered as actual damages on a statutory bad faith claim. It is the starting point for any argument that a carrier mishandled a first-party claim.
The practical point is simple. Notify your own carrier early. Get its written consent before settling with and releasing the at-fault driver, because releasing the at-fault driver without consent can destroy the UIM claim. Our page on uninsured and underinsured motorist claims explains more.
Sometimes. In Texas they are called exemplary damages. Ordinary negligence usually does not support them. They require clear and convincing evidence of fraud, malice or gross negligence under Section 41.003, and are capped by Section 41.008.
Section 41.008(c) removes the cap where the claim is based on conduct described as one of the listed felonies committed knowingly or intentionally. Intoxication assault and intoxication manslaughter are on the list, and for those two the conduct need not be knowing or intentional. The exception reaches only the defendant whose conduct it was. In a crash caused by a drunk driver, that exception can matter a great deal. Our page on drunk driving injury claims covers it.
Under Section 16.003(a), suit generally must be filed within two years after the day the claim accrues, which is usually the date of the injury. For a death claim, Section 16.003(b) runs the period from the date of death. Under Section 16.001, limitations are generally tolled only where the person was under 18 or of unsound mind when the claim accrued.
If a government vehicle or a government employee was involved, Chapter 101 adds a separate notice requirement. Section 101.101 gives any governmental unit notice within six months, but a city charter period permitted by law governs where it applies. The City of Houston requires written notice within 90 days. Under Section 101.101(c), the notice requirement does not apply where the governmental unit had actual notice.
You generally do not have to give a recorded statement to another party’s insurer. Your own policy may require you to cooperate with your own insurer. If the other insurer calls, you can take its claim number and end the call.
Every statute and case linked above was read at its primary source. Texas statutes change every legislative session and case law is constantly changing.
This page is general information about Texas law. It is not legal advice about your situation, and reading it does not create an attorney-client relationship.
Vehicles are repaired or salvaged quickly, and the event data recorder goes with them. Intersection and business video is often overwritten within weeks. A preservation letter can go out right away. Keep every document in one place, and write down what you remember while it is fresh.
We start by locking down the evidence: preservation letters for the vehicles, their data and any video. Then we identify every layer of coverage, including your own uninsured and underinsured motorist policy, and gather the records that show what your care was actually paid or incurred at.
Schiffer Law Firm is a Houston personal injury firm with 50 plus years of combined experience representing injured people across Texas.
There is no charge to talk, and no attorney’s fee unless there is a recovery.
Written by Jacob Schiffer, Attorney, Schiffer Law Firm. State Bar of Texas No. 24105175.
Call 713-521-0059.
In most cases, suit must be filed within two years after the day the claim accrues, which is usually the date of the injury, under Section 16.003(a). If a government vehicle or employee was involved, a separate and shorter notice deadline can apply unless the government already had actual notice. In the City of Houston it is written notice within 90 days.
Yes, unless your percentage of responsibility is greater than 50 percent. Only above that line does Section 33.001 bar recovery. At or below it, including at exactly 50 percent, Section 33.012 reduces your award by your percentage.
Look to the uninsured and underinsured motorist coverage on your own policy. It applies when the other driver has no coverage or not enough, and it is often the largest source of recovery available. The insurer's duty to pay can depend on first establishing the other driver's liability and damages.
Usually not. You generally do not have to give a recorded statement to another party's insurer. Your own policy may require you to cooperate with your own insurer.
Not without your own carrier's written consent, if you may have an underinsured motorist claim. Releasing the at-fault driver without consent can extinguish that claim.
Not necessarily. Section 41.0105 limits recovery to the amount actually paid or incurred by or on behalf of the claimant. How each bill was paid can change that figure.