Answering All Your Questions about Personal Injury, Social Security Disability, Complex Litigation, Special Needs Planning, and Probate
When a catastrophic event puts your future at risk, anxiety and uncertainty will cause you to have a million questions. What can you do? How can you provide for your family? Will you recover?
Allow the extensive experience and knowledge of the Packard Law Firm put your worries to rest. Come learn the answers to your questions and see how we can help pull you out of the depths of uncertainty.
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What Is The Lawsuit Deadline For Injuries To Minors and Children?
Children cannot bring suit in their own name until they become an adult. Parents and certain other adults can bring suit on behalf of a minor child, but they do not always do so. What happens if the adults do not protect the child’s case? The Texas Constitution protects children in this circumstance and by preventing the statute of limitations from starting until the child turns 18 years old. For example, if a 10-year old girl is injured in an accident and nobody files suit to protect her rights, she has until two years after her 18th birthday to file suit.
What happens if your doctor commits malpractice over a period of time?
It can be hard to determine when the statute of limitations begins if a doctor commits malpractice over a long period of time.
When you are dealing with a car wreck, it is easy to know when the statute of limitations begins to run – the date of the wreck. However, in the context of medical negligence, sometimes it is hard to know when the statute of limitations begins to run. Suppose you go to the doctor for a number of years and each time, he misses a cancer diagnosis, or suppose your mother is in a nursing home and the doctors and staff neglect her for many months? In these cases, the safest thing to do is to file suit within two years of the first mistake, but if that is not possible, courts have held that the statute of limitations is kept open until a reasonable time after the last date of treatment.
Other Types of Legal Deadlines:
What is the Statute of Limitations When the Negligence Causes Death?
In some cases, a person is injured in an accident and then dies from his injuries some time latter. When this happens, when does the 2-years start to run – on the date of the injury or on the date of the death? The answer is both! For the family members who are asserting wrongful death claim, their statute of limitations begins not when their loved one was injured, but at the death. However, if the deceased suffered pain and suffering before death and incurred medical bills because of the injury, then the estate also has a claim, and the statute of limitations for that case starts to run from the date of the injury, not the date of death. (Click here for the leading case on this issue. Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 348 (Tex.1992).
Please also note that there is an exception when dealing with medical negligence cases. The statute of limitations begins to run when the injury occurs regardless of when the death occurs. Thus, a wrongful death plaintiff suing on a medical negligence theory does not necessarily have two full years from the time of death to bring a lawsuit. Rather, the statute of limitations expires at the same time it would have for the decedent – two years after the alleged negligence occurred.
What if the negligent party is a government employee?
Government entities have a notice requirement in addition to a statute of limitations. For example, if you are hit by a school bus driver or a city maintained worker, you are required by law to give the particular government agency written notice of your claim before you file suit. These notice requirements act like a statute of limitations because if you fail to give written notice, you probably have killed your case forever. The notice deadlines are very short – usually between 3 to six months from the date of your injury – depending on whether you are talking about a city, county or state government entity. Click here for the City of San Antonio Charter requiring notice within 90 days of the injury. After you give proper written notice of your claim, you are still required to file your lawsuit before the normal statute of limitations expires.
What is the Statue of Limitations Period for an Uninsured/Underinsured Motorist Claim?
If you are hit by a car and the other guy is at fault, then you potentially have two claims
- the claim against the at-fault driver, and
- the claim against your own car insurance company if the other driver does not have enough insurance to cover all your damages.
Deadline For Filing a Lawsuit
The claim against the at-fault driver is a negligence claim, which means that the deadline to file suit is 2 years.
However, the claim against your own insurance company is considered to be a breach of contract case, which means that the statute of limitation is 4 years. And it is not 4 years from the date of the injury, but 4 years from the date your insurance company wrongfully denied your claim. The cause of action in a breach of contract accrues when the contract is breached, or when the claimant has notice of facts sufficient to place him or her on notice of the breach.
Even though the statute of limitations is 4 years for a UIM claim, it is usually better to file suit within 2 years because, many times, you will have an argument that the insurance company acted in bad faith or violated the Texas Deceptive Trade Practices Act, which both have a 2-year statute of limitations. Thus, if you rely on the 4-year statute of limitations, you still will have your breach of contract case against your car insurance company, but you may not be able to assert some of the other theories that could increase the value of your case.
What if I didn’t know that I was injured until later?
When you are in a car wreck, you will almost always know the date you were injured because, by their very nature, car wrecks are sudden and obvious events. But what happens when you are exposed to dangerous chemicals and the symptoms don’t show up until years later? Or what happens if a doctor leaves a foreign object in your body after surgery and you don’t discover it until years later? In these cases, courts will give you a reasonable time to file your lawsuit after you discovered that you have a claim for damages. There are at least two primary ways to keep the statute of limitations open when the injured person does not know they have a claim: (1) the Discovery Rule and (2) Fraudulent Concealment.
The Discovery Rule
The discovery rule exists in case where you could not reasonably be expected to learn that you were injured by someone else’s actions. For example, you may have known that you were exposed to a chemical, but you did not know that you were injured until after the two-years expired. In that case, courts will give you a reasonable time to file suit – not necessarily a full 2 years, but enough time to hire a lawyer and get your lawsuit on file. (click here for more information about the discovery rule).
HECI Expl. Co. v. Neel, 982 S.W.2d 881, 886 (Tex.1998). “The discovery rule has been applied in limited categories of cases to defer accrual of a cause of action until the plaintiff knew or, exercising reasonable diligence, should have known of the facts giving rise to a cause of action. [There are] two unifying principles that generally apply in discovery rule cases. They are that the nature of the injury must be inherently undiscoverable and that the injury itself must be objectively verifiable. [T]he applicability of the discovery rule is determined categorically.” See also Velsicol Chem. Corp. v. Winograd, 956 S.W.2d 529, 531 (Tex.1997).
S.V. v. R.V., 933 S.W.2d 1, 7 (Tex.1996). “An injury is inherently undiscoverable if it is by nature unlikely to be discovered within the prescribed limitations period despite due diligence. [¶] [T]he ‘objectively verifiable’ element [may be] asserted [when] demonstrated by direct, physical evidence. … Expert testimony [alone does] not supply the objective verification of wrong and injury necessary for application of the discovery rule.”
In the law, there is a difference between simply keeping quiet about your own negligence and actively deceiving others about your mistakes. For example, if a doctor makes a mistake during surgery and then lies to the patient about what happened, he may have committed fraudulent concealment that could extend the statute of limitations until the victim learns or should have learned that they have a claim. This sounds a lot like the discovery rule, but it is actually different. With the discovery rule, the focus is on whether the Plaintiff’s injury was undiscoverable. In contrast, with fraudulent concealment, the victim knows that she has been injured, but the wrongdoer has actively concealed his mistake or misconduct. Thus, with fraudulent concealment, the focus is on whether the wrongdoing was actively concealed. (Click here for more information about fraudulent concealment Holland v. Thompson, 338 S.W.3d 586, 596 (Tex.App.—El Paso 2010, pet. denied). “Fraudulent concealment works to estop a defendant from asserting limitations as a defense because 'a person cannot be permitted to avoid liability for his actions by deceitfully concealing wrongdoing until limitations has run.' Fraudulent concealment tolls the statute of limitations until the injured party, using reasonable diligence, discovered or should have discovered the injury. The elements of fraudulent concealment are (1) the existence of the underlying tort; (2) the defendant's knowledge of the tort; (3) the defendant's use of deception to conceal the tort; and (4) the plaintiff's reasonable reliance on the deception. See also BP Am. Prod. v. Marshall, 342 S.W.3d 59, 67-68 (Tex.2011).
Other Types of Legal Deadlines:
What happens if I am injured at work and my employer doesn’t have workers’ compensation insurance?
Texas is the only state in the nation that does not require employers to offer workers’ compensation insurance to employees. If an employee is injured on the job while working for a “non-subscriber,” the employee generally has two options for compensation: payment through an alternate benefit plan, or filing a non-subscriber work injury claim. Injured workers should consider these options carefully, since the amount they can get for an injury can vary widely depending on the method they choose.
Options for Compensation After a Texas Work Accident
Some employers choose to carry other forms of insurance that cover employee injuries, but these plans are very different from state-sanctioned workers’ compensation. They typically offer limited payments and do not provide the same guaranteed employee protections as workers’ compensation. Many such programs are also under the total control of the employer, meaning that the employer can require an injured worker to give a recorded statement, see the company’s own doctors, and relinquish the right to seek additional benefits once payment is made.
Non-subscribing employers are also under no obligation to pay for a worker’s lost wages. While the company may choose to pay injured employees a portion of his or her regular income, they are also allowed to choose the amount and the duration of these payments. If the payments are not enough to cover an employee’s costs, the employee may be unable to pay his or her bills, forcing workers to return to work before they are healed. As the compensation available through non-subscribing employers is often inadequate, Texas employees should always discuss non-subscriber claims with an attorney before accepting an employer’s benefits.
What it Takes to Win a Non-Subscriber Work Injury Lawsuit
While there is no guarantee of winning compensation in a non-subscriber case, there are many benefits to pursuing this kind of action. You can be awarded a sum for your lost wages, coverage for your medical costs, and any permanent losses due to a disability caused by the accident. In addition, employees can be granted additional sums for pain and suffering, which are not available to employees covered under workers’ compensation.
In order to get payment from a non-subscriber, your case will depend on:
- Employer negligence. The issue of fault in a non-subscriber claim is greatly in the employee’s favor. If an employee can prove that an employer was one percent to blame for the accident, the employer is responsible for all of the damages. This one percent could take the form of unsafe working conditions, failure to train employees, lack of safety equipment, failing to fix known issues, failing to inform employees of known risks, and other negligent practices.
- Your negligence. In these lawsuits, workers cannot be assigned negligence based on the assumption of some portion of natural risk, nor because the actions of a coworker contributed to the injury. The only way an employee can share legal responsibility for an accident is if he or she was intoxicated, or the employee intended to bring about the injury.
- Posting requirements. Employers who do not have insurance are required to post a notice about their workers’ comp status in a conspicuous location. Employers are prohibited from falsely representing an unapproved work injury insurance program as compliant with workers’ compensation laws. If the employer does not adhere to these laws, they could be subject to additional legal actions.
- Third-parties. An employee can file a third-party claim for compensation if someone other than the employer played a role in the injury. For example, an employee who was injured by a falling paint can could have a suit against a contracted painting company. If the employer knew that the painting company would be working during regular hours and failed to notify employees or provide additional safety, the employer could also be held liable for the accident.
- Fatal injury. Families of loved ones who are killed as a result of a work accident are entitled to file claims on the employee’s behalf. If an employer is found guilty of gross negligence leading to fatal injuries, the family of the worker could hold the company liable for their financial and emotional losses.
- Retaliation. Employers are allowed to terminate employees at any time under the “at will” doctrine. However, there is an exception for employees who have filed workers’ compensation claims or who are taking legal action after a work injury. Under Texas law, employer retaliation is illegal for all employers, whether they provide workers’ compensation insurance or not. If your employer attempted to retaliate against you, he could be held liable for additional damages.
The amount an injured worker could receive depends the circumstances of their case, the extent of their injuries, and their ability to earn a living in the future. Contact the Packard Law Firm today to speak to a work injury attorney in your free, confidential, and no-obligation consultation.
Does an employer have to carry workers’ compensation insurance in Texas?
The workers’ compensation insurance program was created as a faster and cheaper alternative to filing a lawsuit against an employer. Workers who are hurt on the job would agree not to sue an employer in return for medical care and a portion of their wages while they recover from an injury. However, Texas is the only state in the nation that does not require employers to carry workers’ compensation insurance, making recovery for medical bills and other out-of-pocket expenses much more complicated.
Types of Compensation After a Work Injury in Texas
In most cases, Texas workers have two options for filing work injury claims, and the method will depend on whether or not the employer carries workers’ compensation insurance. While it is not mandatory, many Texas companies choose to carry workers’ compensation insurance because it is less costly than defending work injury lawsuits.
Injured workers in Texas may collect payment for accidents at work through:
- Workers’ compensation. If the employer has subscribed to a workers’ compensation plan that has been approved by the State Department of Insurance, injured employees are required to file for injury payment through workers’ compensation. In most cases, these employees will not be able to sue the employer directly, but they will also receive automatic benefits up to the limits of coverage.
- Non-subscriber claims. If your employer does not carry an approved workers’ compensation policy, the company is considered a “non-subscriber” and the employee is eligible to file a lawsuit. Non-subscribers are under no obligation to provide specific payments for injury costs or lost wages, but they are also at a disadvantage if the employee decides to sue. If an employer chooses not to have insurance, the employer loses the right to claim employee negligence as a defense in court. In short, this means that the company can try to blame the worker for causing the accident, but the worker only has to prove that the employer was one percent responsible for the injury. If the employer is found to be one percent liable, the company will be responsible for paying all of the damages related to the injury.
- Third-party claims. Depending on the circumstances of the accident, an injured worker may be able to file a claim against someone other than the employer. An accident may have happened at work, but it could be the fault of a third-party (such as a coworker, a loading company, a cleaning or maintenance company, or the manufacturer of a defective piece of equipment).
How Can I Tell If My Employer Has Workers’ Compensation Insurance?
Many employees are unaware that their employers do not carry workers’ compensation insurance. Under Texas law, employers are required to post information regarding their workers’ compensation policies in an open and often-visited location in the workplace that is accessible to all employees. If the employer has workers’ compensation insurance, the notice should include the name, address, and phone number of their insurance carrier. If the employer does not carry workers’ compensation insurance, there should be a clear and easily-accessible notice posted so that all employees can see it.
Unfortunately, it can be difficult to get compensation for a Texas work injury whether your employer has workers’ compensation or not. Although the workers’ compensation system is supposed to provide fair and fast payment to workers, it is run by insurance companies who have a vested interest in denying claims. Workers often have to fight with insurance companies to get the basic workers’ compensation coverage that the policy allows, and trying to get full coverage for medical costs can be all but impossible. Insurers may also attempt to delay payments in the hopes that an injured worker will abandon the claim, or even return to work in order to pay the bills.
If your employer is not providing the benefits you deserve after a work injury, we can help. The attorneys at the Packard Law Firm can investigate any misconduct or potential illegal activities on the part of your employer, and we can deal with an insurance company on your behalf to get you the payments you need. Contact us today to discuss your potential claim with an experienced attorney in your free, confidential, and no-obligation consultation.
What is a third-party work injury claim?
There are potentially three parties that could be involved in a Texas work injury claim. These parties include the:
- First party. This is you.
- Second party. This includes your employer and by extension your employer’s other employees.
- Third party. Anyone else is considered a third party.
If you, your employer, or another employee was not responsible for your work injury, then it is important to consider whether a third party may be liable. When you are hurt by a third party while at work or while performing a work-related activity, you may have a third-party work injury claim.
How Third-Party Injury Claims Happen
Any time a third party causes your job-related injury, you may have a third-party claim. Some common examples of third-party job injury claims include:
- Motor vehicle accidents when the at-fault driver is not employed by your employer. If you are driving for work and you are involved in an accident that is caused by another driver who does not work for your employer, then you could have a third-party claim.
- Multiple contractors working on the same site and an injury being caused by someone who works for someone other than employer. If, for example, a roofer and an electrician are working on the same construction site but are employed by different companies, then the roofer could have a third-party claim if he is hurt by the electrician or the electrician could have a third-party claim if he is hurt by the roofer.
- Faulty equipment that was built or maintained by someone other than your employer. If the crane, the truck, the forklift, or another piece of equipment that you are using causes an accident and your injury because of faulty manufacturing or maintenance then you could have a third-party claim.
Of course, this list is not all inclusive and other types of third-party injury claims may arise. However you are hurt by a third party, you need to know how to protect your recovery.
What You May Recover in a Third-Party Injury Claim
Third-party work injury claims are different from workers’ compensation cases. In a third-party work injury claim, you may be able to recover for:
- All of your past, current, and future medical care related to your injuries. You may be able to select your medical providers.
- All of your past, current, and future lost income related to your injuries. This includes wages, benefits, bonuses and any other income that you are unable to earn because of your injuries.
- Physical pain and emotional suffering. These may be among your most significant damages.
- Loss of enjoyment of life and the things that you did before you were hurt. Keep detailed lists of everything that you are missing because of your injuries.
- Any damage to your own property. For example, if you were driving your own car for a work-related reason at the time of a crash then you may recover for the damage to your vehicle.
As with all types of personal injury claims, you will have to convince an insurance company or the court of the at-fault person’s liability and of the value of your injuries in order to make a recovery. Specifically, you will need to prove that:
- The third party owed you a duty of care.
- The third party breached that duty of care.
- You were hurt because of the third party’s breach of the duty of care.
- You have the right to seek damages for your injuries in court.
Your recovery is not automatic; instead, you have to fight for it.
How to Protect Your Right to a Fair Recovery in a Third-Party Injury Claim
While you pursue a third-party injury claim, it is important to remember that you may still be entitled to workers’ compensation benefits from the same incident. It is important to pursue all potential claims to make the fullest and fairest recovery possible.
For this reason and others, third-party work injury claims can be complex, and it is important to work with an experienced workers’ compensation lawyer to help you get the benefits that you deserve. To find out more, please browse the resources on our website and call us today to schedule a free, no-obligation consultation.
How can I find out if my employer has workers’ compensation insurance?
In other states, it may be a pretty safe bet that your insurer would have workers’ compensation insurance because such insurance would be required by state law. However, in Texas that is not true. Employers may decide for themselves whether they want to be covered by workers’ compensation—even though they may not decide for themselves whether they want to pay injured workers. In order to get the fair recovery that you deserve if you are hurt at work, it is important to know whether your employer has workers’ compensation insurance.
Texas Employers Must Provide Employees With Notice of Their Workers’ Compensation Status
Employers are required to let their employees know whether or not they have workers’ compensation insurance. Texas Department of Insurance Reference Rule 110.101(e)(2) requires that a notice be posted in English, Spanish, and any other language common among employees. This notice must be posted in the personnel office (if there is one) and in a prominent place in the workplace where employees are likely to see it regularly. The rule requires certain fonts for the title and content and it requires that certain words by used. A model form is provided for employers to use. Whatever form the employer uses, however, must include the date the employer was certified by the state as having workers’ compensation insurance and other information.
Your employer is also required to inform you in writing of its workers’ compensation insurance status when you are hired and whenever that status changes.
How to Know for Sure
Unfortunately, some employers do not tell the truth about their workers’ compensation coverage. They may try to avoid the costs of workers’ compensation insurance and a non-subscriber claim by telling you that they are covered by workers’ compensation insurance when they do not have such coverage.
If you have a question about whether your employer is insured then you can contact the Texas Department of Insurance or, if you’ve been hurt, then you can contact an experienced Texas work injury lawyer who can help you take the necessary steps to protect your recovery whether your employer is covered by workers’ compensation or is a non-subscriber.
What Happens If Your Employer Is Covered by Workers’ Compensation
If your employer is covered by workers’ compensation insurance, then your recovery for a work-related injury or illness should come from the insurance company. The insurance company should pay your medical expenses directly to your medical providers and should provide you with any benefits to which are entitled by law. As with any type of insurance coverage, however, the insurance company has a financial incentive to pay you as little as possible so that it can maximize its profits. Accordingly, you may have to fight for your fair recovery.
Don’t Give Up Your Rights If Your Employer Does NOT Have Workers’ Compensation Insurance
Texas does not require that all employers subscribe to workers’ compensation insurance. The employers who choose not to purchase workers’ compensation insurance are called non-subscribers.
Non-subscribers are not off the hook for paying for your work-related injury or illness. Instead, they are liable for all of your injuries, including all of your medical expenses, lost income, future lost income, pain, suffering, and other damages. Additionally, if you can prove gross negligence, then your employer may be liable for punitive damages. In other words, you may be able to recover more than if your employer had been covered by workers’ compensation insurance.
The first step in protecting your work injury recovery is knowing whether or not you are pursuing a workers’ compensation claim or a non-subscriber case. If you have any question about the kind of recovery you are seeking or if you would like help protecting your rights in either type of case, then we encourage you to contact our experienced work injury lawyers directly for a free, confidential, no-obligation consultation. Your time to pursue both types of cases is limited, so please contact us any time via this website or by phone to schedule your meeting today.