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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Did someone who was not working for my employer (a 3rd party) help cause my accident or injury?
In Texas, employers who purchase approved workers’ compensation insurance have almost complete immunity from lawsuits when they injure their own employees. This means that the injured workers have to be compensated through the workers' comp system, which is usually a raw deal for the employee. In fact, the injured workers are frequently grossly undercompensated in the workers' comp system. Thus, a good lawyer will look for ways to add to or supplement the compensation paid through the workers’ comp system. One way to do this is to look for a third party that may have contributed to the accident.
Uncovering Third Party Liability
There are many situations when someone other than the employer is to blame for the accident. For example, suppose you are driving on a work-related errand, and another car crashes into you, the at-fault driver was not working for your employer, and is therefore considered to be a 3rd party. In this situation, you can receive your normal workers’ comp benefits from your employer’s insurance carrier, but you can also seek compensation from the at-fault driver. This is known as a 3rd party case. (The injured worker is considered to be the 1st party, the employer/co-workers are considered to be the 2nd party, and the party that actually caused the injury is considered to be the 3rd party.) Thus, even when the employer can’t be sued because it bought official workers’ comp insurance, the 3rd party is not immune and can be sued even when you are also receiving workers’ comp benefits.
Do I Have a Third Party Case?
There are many types of 3rd party cases. You have a 3rd party case when there are multiple contractors on a job and one contractor hurts an employee of another contractor. Faulty construction equipment, negligent architects, and negligent property owners all can create opportunities for a 3rd party case. If you do have a legitimate case against a 3rd party, you will be able to recover all the damages that you could not recover in the workers’ comp system – such as your remaining past and future lost wages, pain and suffering, and lost capacity.
What are my rights when my employer did not carry ‘official’ workers’ comp insurance?
Normally, employers can effectively immunize themselves when they injure their own workers simply by carrying “official” workers’ comp. Thus, one might think that every sensible employer would make sure they have this coverage. But many Texas employers do not do the sensible thing. Remarkably, 1/3 of all Texas employers do not carry official workers’ comp. These employers are called “non-subscribers.” Why do so many employers non-subscribe? Because official workers’ comp is more expensive than cut-rate plans, and 1/3 of the Texas employers have decided to take the gamble and either go without any insurance or buy a cheaper plan. These plans provide fewer benefits and give less protection to the injured workers. It is a classic “profits over people” business decision. These employers provide a cut-rate “benefit” plan that has even fewer benefits than the official workers’ comp plans with no administrative protections. The employers then try to persuade the injured workers to take what little benefits the plan offers without asking questions or causing “problems” for the employer. Unfortunately, many injured workers think that they are getting workers’ comp when, in fact, they are getting a watered-down version that is administered by the company – not by the Texas workers’ comp system. This is deceptive and unfair.
Fortunately, if the injured workers are informed about the non-subscriber law, they can do something to protect themselves. They can file a lawsuit in state court and obtain full and complete compensation as long as they can prove that their employer (including a co-worker) was at least 1% responsible for their injuries. Many times, this 1% responsibility can be proven by showing that the employer had inadequate safety training and/or insufficient staff to do the work safely. You may also be able to show that your employer provided inadequate warnings and/or failed to provide proper equipment. All these things relate to the employer’s general duty to provide a safe working environment.
What happens if the other person does not have enough insurance to cover all my medical bills and damages?
If you do have car insurance, then you will want to check to see if you have certain coverages such as auto collision, personal injury protection, uninsured/underinsured protection and/or medical payments protection. Depending on the circumstances, these coverages may be very helpful to you.
What happens if I am an undocumented immigrant and am hit by another driver? Can I still file a claim?
If injured in an accident, an undocumented immigrant has legal rights. A person’s residency status does not prevent that person from filing a claim against an insurance company after an accident has occurred.
Undocumented Immigrants Can File Car Accident Claims
If an undocumented immigrant has been involved in a wreck that was caused by another careless driver, then that driver, along with that driver’s insurance company, is responsible to pay for any damages caused by the accident - regardless of status. This includes payment for medical treatment, property damage to the car, and pain and suffering. However, it should be noted that, from a practical standpoint, an undocumented immigrant might have difficulty proving lost wages because they do not have a legally documented work status.
Regardless of Residency Status, Don't Be Afraid To File A Car Accident Claim
Many insurance companies use fear tactics. They know that many undocumented immigrants are afraid that legal actions might affect their status in the country. They know that they can get away with treating the claim unfairly and so they do. Another dirty trick used by some insurance companies is that they say that they cannot provide compensation because the undocumented immigrants do not have a social security number. This is simply not true.
The truth is, insurance companies and attorneys do not use an injury claim to threaten an immigrant’s residency status because it is considered unethical. Also, the law recognizes that everyone has the right to obtain medical treatment and the doctors and hospitals have the right to be paid.
Injured Undocumented Immigrants Should Consult A Lawyer
If any of these tactics are used, it should not be tolerated. Claims involving undocumented immigrants are often complex and it may be a good idea to get an attorney so that your claim can be treated with the type of respect that the immigrant deserves.
Will My Car Insurance Rates Increase If My Insurance Company Pays to Repair My Car, Even When I Wasn't at Fault in the Accident?
Insurance companies can raise rates for almost any reason. But this doesn’t necessarily mean that you should not file a claim after a traffic accident.
Do Insurance Companies Have Free Rein When It Comes to the Rates They Charge?
In Texas, car insurance companies can increase rates pretty much anytime they want to. In fact, it is legal for car insurance companies to raise rates just for asking about a claim—even if you never file one. There are actual reports of car owners who have had their rates increased even when they never filed a claim of any kind—all they did was call and discuss the situation with their insurance company. In 2013, the Texas legislature passed a bill that prevented an insurance company from increasing rates against homeowners just for calling about a potential claim. The bill originally had similar protections for car owners, but under intense pressure from the insurance lobby, this language was taken out.
Other times, the insurance company will place some of the blame on you even when the police determined that the other guy was at fault. This is another reason they increase rates.
So If They Are Going to Raise My Rates, Why Would I Ever Have My Own Insurance Company Pay for Anything?
First of all, insurance companies have a way of finding out that there was an accident even if you do not file a claim, and they may increase your rates no matter what you do. In these cases, you might as well file a claim and get your money.
Moreover, the numbers usually work in your favor. For example, say that your rates increase from $600 per year to $725 per year because of an accident that was not your fault. That would be $625 over the next 5 years. (Rates usually go back down after 3-5 years.) If your claim is worth $2,500, it is a no-brainer to take the money and pay the increased premium.
Finally, you are allowed to change insurance companies any time you want. If the accident is not your fault, you should not have a difficult time getting a fair quote from another insurance company. Just because your insurance company increases your rates does not mean that all insurance companies will do the same. So if your company increases your rates, just shop around and get a better rate with someone else.
I have heard some clients say that they do not want their insurance involved no matter what. Sometimes, that works out OK, but many times, it costs them thousands of dollars.
Of course, if you have questions and want to talk through the issues, you are welcome to call me.
What Should I Tell My Insurance Adjuster After An Accident?
The short answer is, yes.
Most insurance policies have a provision requiring prompt notice of an accident. Additionally, your policy may provide coverage for repairs to your vehicle, or it may even cover a rental car while yours gets repaired. Many times your own insurance company acts more quickly than the other driver’s insurance company. So, you need to call and set up a claim with your own insurance company to get the process going.But there are also a few landmines that you want to avoid. First, don’t go into detail about your physical injuries, especially if you talk to the adjuster soon after the accident. Since he or she will be the one who negotiates the settlement, many times an adjuster will hope to pin down your specific injuries early on when you don’t even know how badly you were hurt. A good approach to take when the adjuster asks about injuries is to say that you don’t know the extent of your injuries, but you want to get checked out by a medical provider. Many car wreck injuries aren’t apparent the first few days after an accident, so keep that in mind when you make your initial call to your adjuster.
It is legal for the other side to take pictures and videos of me without my consent?
Yes, and it happens more often than you might think. Aggressive insurance companies and defense lawyers often hire private investigators to watch an injured person from a distance and take photos or video to make it appear that they are not injured. If you are injured, you should assume that this could potentially happen to you.
What is the first thing I should do after an accident?
The moments following an accident can be very disorienting. If you can following these steps, you'll set yourself up to achieving a successful car accident case outcome.
What To Do Immediately After An Accident
First, make yourself safe. Sometimes a simple accident can turn into a pileup. Also, Texas law requires drivable vehicles to move off the main roadway onto the shoulder.
Second, call the police and report the accident. You need the police there to write an accident report. They usually take a while to show up, so make the call as soon as you can. When they show up, make sure you talk to them about what happened. Don’t guess about things you didn’t see or don’t remember.
Getting in an accident is traumatic. In times like this, the human body fills with adrenaline, and that can mask pain. So when the officers ask, let them know about any obvious injuries. But rather than telling them you are not injured, let them know that you would like to get checked out by a doctor to see if you are injured. Many times, pain and soreness show up days after an accident.
Third, exchange contact information and insurance information with the other drivers. If the police are there, they will usually facilitate this.
Fourth, take pictures if you can. You want pictures of each car that is involved in the accident, and whatever damage the vehicles sustained. Get pictures of the accident scene as a whole, showing landmarks and intersections in the background. Also, take pictures of any injuries you have. Scrapes and bruises heal pretty quickly, so document these injuries with photos through the healing process. The same is true for more significant visible injuries. Every few days, take a few pictures.
Fifth, call your own insurance company and report the accident. Don’t go into detail about any injuries, simply say that you are going to go get checked out. Your policy might cover a rental car. If it does, ask for help setting that up.
Lastly, go to the doctor and get evaluated soon after the accident. Ideally, this will be the same day as the accident. If you wait to get evaluated, the insurance company will try to blame your injuries on something else. Keep in mind, that many doctor’s offices won’t treat you for accident-related injuries, so you might have to go to an emergency room or urgent care center for your initial evaluation. If you need help setting up treatment, a lawyer can help point you in the right direction.
Reach Out To Our Experienced Law Firm
If you've been injured in an accident, you've probably got lots of questions about what happens next. We recommend that you contact a car accident lawyer to get the best chance of receiving the highest amount of compensation possible. Submit a contact form on our website if you would like to speak to a lawyer. We offer free consultations and there is absolutely no commitment.
What Happens if Someone Passes Away in the Middle of Their Lawsuit?
Sometimes, a person who has been injured in an accident lives for quite some time -- enough time to file a lawsuit -- but they finally succumb to their injuries and pass away while their lawsuit is still pending. Unfortunately, in medical malpractice cases and catastrophic injury cases, this happens quite often. So what happens to the lawsuit if the plaintiff dies while the case is still pending?
In the old days, the lawsuit died when the plaintiff died. However, modern law allows the family members to keep the case going even after their loved one has passed away. The law is known as the “survivor statute” -- meaning that a person’s lawsuit “survives” his or her death.
Technically, when the plaintiff dies while the case is still pending, the lawsuit will be “owned” by the plaintiff’s estate. Thus, the lawsuit will be considered an asset of the estate, just like any other asset of the estate (such as a bank account or a home). That asset (the lawsuit) can be turned into money when the case settles or when the case is won in court. At that point, the client’s share of the proceeds from the case will be distributed to the heirs just like any other asset in the estate.
What Steps Need to be Taken to Keep the Lawsuit Going?
In order to keep the case alive, there are some legal procedures that have to occur. In essence, someone has to be appointed to be in charge of the estate. Again, since the lawsuit is considered to be part of the estate, the person who is in charge of the estate is also in charge of the lawsuit when the plaintiff dies while the case is still pending. In this regard, is it much easier (and less expensive) if the plaintiff has a will that names an administrator of the estate who is given authority to control the assets and distribute the proceeds to the heirs in the will. If the plaintiff had such a will, then it will be probated and the court will issue a letter that authorizes the designated person (usually a close family member) to manage the estate. This letter from the court gives the designated administrator of the estate authority to make all kinds of decisions about the assets of the estate, including decisions about the case, including settlement decisions. Usually, these estate administrators of the estate can operate independently, without court supervision.
What if a Will Does Not Exist?
However, if the plaintiff is unfortunate enough not to have a will when he or she dies, then the situation becomes more complicated. Because there is no will, the probate court has to do a lot more work to determine who the legal heirs are. When this work is done, someone will be appointed by the court to manage the estate and the case. However, when there is no will, the court will be much more involved in supervising the activities of the estate. For example, the law firm who was handling the case before the plaintiff died will need to get the court’s blessing to continue representing the estate. Moreover, the court will have to approve any settlement of the case before final documents can be signed. Although it takes more time, work and money to get all the probate matters resolved when there is no will, if the plaintiff had a good case before death, it will be worth it to go through this process so the case can proceed.
Is There Anything Else That Can Be Done?
The bottom line is this: if the plaintiff dies before the case is over, then once the administrator of the estate is properly appointed, he or she can continue to push the case towards settlement or trial. If there are any proceeds from the case, the client’s share will go to the heirs of the estate.
In addition to the plaintiff’s survival action, there also might be a wrongful death case that close family members can bring on their own behalf. A wrongful death case is intended to compensate the family members for the loss of companionship and financial support that the family members suffered as a result of losing their loved one. In contrast, a survival action is intended to provide compensation to the estate for the pain, suffering and medical expenses sustained by the plaintiff while he or she was alive. A wrongful death case is not owned by the estate, but is owned by the family members (parents, spouses and children) who lost their loved one as a result of someone else's carelessness. Thus, the family members can bring a wrongful death case without going through any probate proceedings.
Although a wrongful death case and a survival case are different cases, when they arise out of the same tragic incident (which they typically do) then they will be brought together in the same lawsuit and will be submitted together to the same jury.
Who files the claim when the children are injured? What happens if the parents are divorced? Can either parent file a claim?
Normally, the custodial parents or guardian files on behalf of minor children. (Find out the answer to the rest of the question.) In some cases, the court will appoint a lawyer to review the file and approve the settlement of a minor’s injury claim. Typically, the defendant pays for this review.