Call Now
713-521-0059
Three things, in this order. Who was at fault and by what percentage. How much insurance coverage actually 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. Everything else is detail.
Most published advice about car accidents in Texas describes injuries and treatments. That is not what decides a claim. These three questions are.
Fault. Texas apportions responsibility by percentage, and you can still recover so long as your share is not more than 50 percent.
Coverage. Texas minimum limits are low. In a serious injury the at-fault policy is often exhausted immediately, and the recovery has to come from somewhere else, usually your own uninsured and underinsured motorist coverage.
Paid or incurred. The billed charge alone is not the figure a Texas claim is valued on, because Texas measures medical damages by what was actually paid or incurred, and how a bill was paid changes that figure.
Under Section 33.001 of the Civil Practice and Remedies Code, a claimant can recover so long as the claimant’s percentage of responsibility is not greater than 50 percent. At 50 percent or below the claim survives, with the award adjusted by that share under Section 33.012.
The rule is stated correctly as more than 50 percent, not as 51 percent. The distinction matters when a jury apportions in fractions.
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. What counts is every dollar actually paid or incurred on your behalf, and finding all of them means going back to the source records and bills rather than working from a summary. That is our job, not yours.
Reasonableness and necessity of the charges can be established by affidavit under Section 18.001 instead of live testimony from every provider. That section states expressly that the affidavit is not evidence of causation, so it will not by itself connect the treatment to the crash.
This is the most valuable and most neglected coverage in Texas. 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 also does not work the way people expect. Brainard v. Trinity Universal Insurance Co., 216 S.W.3d 809 (Tex. 2006) 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 and may recover attorney fees under Chapter 37, in the trial court’s discretion. That changed the leverage in these cases considerably.
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.
Practical consequence: notify your own carrier early, and get its written consent before settling with and releasing the at-fault driver, because releasing the tortfeasor without consent can destroy the UIM claim.
Ordinary negligence 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 for conduct described as certain felonies, including intoxication assault and intoxication manslaughter. In a crash caused by a drunk driver, that exception frequently matters more than everything else in the file.
Under Section 16.003(a), suit must be brought not later than two years after the day the cause of action accrues. Section 16.003(b) gives two years from the date of death where the injury results in death. Limitations are tolled while a claimant is younger than 18 or of unsound mind, under Section 16.001.
If a government vehicle or a government employee was involved, Chapter 101 adds a separate notice requirement. Six months under the statute, but Section 101.101(b) ratifies shorter city charter periods, and the City of Houston requires notice within 90 days.
You are not required to give the other driver’s insurance company a recorded statement, and there is rarely a reason to. You do have duties of cooperation to your own carrier under your own policy, which is a different thing.
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.
Get the care you need, from whoever is right for the injury. We do not tell clients where to seek treatment, and we would be suspicious of any firm that did. 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. Texas measures recovery by what was paid or incurred, so 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 deliberately rather than by default.
Future care has to be proven. A surgery you will need in five years is recoverable, but only with medical evidence of reasonable probability and cost. It does not get added at the end.
The first conversation is free, it is confidential, and it does not commit you to anything.
Do not release the at-fault driver without your own carrier’s written consent. Doing so can destroy the underinsured claim entirely.
Evidence goes fast. Vehicles are salvaged with the event data recorder still inside, intersection and business surveillance is overwritten within weeks, and the vehicles themselves are repaired. A preservation letter can go out immediately.
Schiffer Law Firm keeps a deliberately small caseload, in Houston and across Texas. There is no attorney’s fee unless there is a recovery.
Call 713-521-0059.
Two years from the day the cause of action accrues under Section 16.003(a). If a government vehicle or employee was involved, a separate and shorter written notice deadline applies, and in the City of Houston it is 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, your award is reduced 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.
No. You are not obliged to give a recorded statement to the other driver’s insurer. You do have cooperation duties to your own carrier under your own policy, which is a separate matter.
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.
