Why Working with a Car Accident Lawyer Is Important
Most car wrecks would not happen if other drivers followed the rules of the road we all depend on. The harms inflicted by negligent drivers are compounded by the reality that the drivers’ insurance company and employer immediately go to work to avoid their responsibility toward the victim.
That’s why it is important to discuss all your options with an experienced car accident attorney from the Permian Basin area, who not only knows what you are going through but has the experience and resources to take on the big insurance companies.
Car Accident Damages
When you are injured in a car crash that was caused by someone else, you may have the right to pursue car accident compensation for your losses. The types of harm you can be compensated for are called damages.
There are two different types of damages: economic damages and non-economic damages. Economic damages are directly related to monetary loss, such as medical costs. Non-economic damages are subjective and can be harder to put a value on, such as emotional distress, pain, and suffering. However, you are entitled to compensation for all your damages.
The most common losses and expenses our firm fights for include:
- Property damage
- Past and future medical costs
- Lost wages
- Loss of earning potential
- Pain and suffering
- Emotional anguish
- Loss of consortium (spousal relationship)
- Loss of enjoyment of life
In some cases, you may be eligible for punitive damages, which are meant to punish the wrongful actions of the at-fault driver. If your loved one dies as a result of a fatal car crash, you also have options for compensation.
Every state has a statute of limitations for personal injury lawsuits. This is a deadline for how long you have to file a personal injury lawsuit and begin the litigation process.
- In Texas, you have two years from the date of the accident to file a personal injury suit.
- In New Mexico, you have three years from the date of the crash to file.
A statute of limitations applies only to litigation—not an insurance claim. After a crash, you should speak with a car accident attorney right away to ensure you do not wait too long.
If you wait weeks or months to begin the auto insurance claims process, your claim may be denied. You will be forced to file a lawsuit to get the insurance company to negotiate a fair settlement offer.
Property Damage and Texas Law on Total Loss
In the event of a car accident, you can get money for your property damage, including the value of your car and any other property that was damaged in the wreck.
In some cases, your car may be considered a “total loss,” and you will be able to get money for its total value. For an insurer to claim your vehicle is a total loss, the cost of repairs plus the salvage value must exceed the pre-wreck fair market value. If your vehicle is a total loss, Texas car accident laws entitle you to the fair market value of your vehicle before the wreck.
Unfortunately, insurance companies often use processes or formulas that place your vehicle at a lower value than it should be. Talk with a car accident attorney about how to properly value your vehicle, and do not be afraid to counter an insurer’s first offer regarding the value of your car.
Vehicle Damage in New Mexico
Whether or not your vehicle is totaled in New Mexico depends on the total loss formula. This is where the insurer determines if repairing the car would be uneconomical based on the cost of repairs versus the cost of salvage/scrap.
If your vehicle is deemed totaled, the insurer should provide a total loss payment. You should discuss how insurers determine the cash value of your vehicle with your lawyer and how you can negotiate for the best possible payment.
If your vehicle is undrivable after the crash, talk with your attorney about a loss of use claim. This claim specifically seeks compensation for the days you cannot drive your vehicle.
Physical Injuries in Car Accidents
A number of variables, including speed, angle, and placement of the collision, can result in a range of physical injuries, from a car accident, such as bumps and bruises, to catastrophic injuries and even death.
Our family firm has helped people suffering from all types of injuries, including facial disfigurement, broken bones, whiplash, herniated discs, traumatic brain injuries, spinal cord injuries, and paralysis. We have helped families who have lost a loved one in a traffic fatality.
Psychological Effects of Car Accidents
We know that physical harm is not the only consequence. You may experience significant psychological trauma from the collision or emotional anguish like anxiety, a phobia of driving or being in a car, depression, post-traumatic stress disorder, and other psychological and emotional effects.
We hire the necessary experts to help evaluate and prove your damages in each of these areas.
Punitive damages differ from compensatory damages and are meant to punish the wrongdoer. They are only available when you can prove the at-fault party’s actions were purposeful, reckless, or grossly negligent; they are not meant to compensate you for a specific injury. Punitive damages are sometimes available in drunk driving accidents.
Wrongful Death Damages
If your spouse, parent, or child passed away in a car accident, you should talk with an attorney about pursuing a wrongful death claim under the Texas or New Mexico wrongful death statutes.
Relatives can typically pursue compensation for the loss of their loved one’s income, services, companionship and society, and the family member’s emotional distress.
- In New Mexico, you have three years from the date of your loved one’s death to file a wrongful death claim.
- In Texas, you have two years from the date of death to file a wrongful death lawsuit.
A survival action is a legal claim that arose when an injured person was alive but was unable to pursue the action prior to their death. For example, if a loved one is seriously injured in a crash but lived, they could pursue a personal injury claim. If your relative then passed away, the personal injury claim survived their death, and the relative’s estate can then pursue the personal injury claim and certain compensatory damages suffered while the relative was alive.
Texas recognizes the separate survival claims of the decedent in the Texas Survival Statute and wrongful death claims of the spouse or children in the Texas Wrongful Death Act. However, New Mexico is different. If your loved one passed away, even if they initially lived for weeks or months, you would only pursue a wrongful death claim.
Proof of Damages
To obtain compensation for your physical, psychological, and financial injuries, you need proof.
Proof of injuries can come from pictures, your own testimony, medical records, and a medical expert’s testimony. Proof of the pain and suffering and mental anguish arising from injuries can come from your own testimony, friends’ and family’s observations, and mental health care records.
Proof of economic damages includes medical bills and receipts. However, proof of future medical expenses may require a medical expert’s testimony. Proof of reduced earning potential may come from a vocational expert and/or economist.
To calculate potential damages, our car accident lawyers work closely with you, your medical providers, and experts. We help you keep track of your expenses and financial losses throughout the personal injury claim process. This paperwork is essential in calculating economic damages.
When it comes to valuing your non-economic damages, we will utilize an appropriate method, such as a multiplier. In some circumstances, we use a per diem (daily rate) for your pain and suffering.
Negligence, Fault, and Liability in Car Accidents
There is a difference between negligence, fault, and liability in car accidents. Negligence describes the behavior of a driver. Fault explains who caused the accident. Liability is a legal theory determining who is financially responsible for the damages that the at-fault, or negligent, the driver caused. These people may be the same or different.
What is Negligence?
Drivers have the duty of ordinary care, which requires them to behave as a reasonable person would under the same or similar circumstances. When they do not do so, they are negligent.
Negligence is a failure to act reasonably and safely. More specifically, negligence can be broken down into three elements:
- A duty to act with reasonable care
- A violation or breach of that duty
- An injury caused by the violation
The breach of duty may violate a traffic law by speeding, running a stoplight, or making an illegal U-turn, or when the driver does not violate a specific law but drives carelessly and increases the risk of a collision, such as by not paying close attention to the road and traffic.
Regardless of the type and cause of negligent driving, the result is often the same: Your life has changed in the blink of an eye. Your health, your income, your credit can all be greatly affected. And the insurance company is not interested in looking after your best interests. That is why you need a proven law firm that has the results to show they can pursue your case to settlement or trial.
When considering who to hire, do not hesitate to contact Kemmy Law Firm. Whether you reside in the San Antonio area, West Texas, or Southern New Mexico, our car accident attorneys will help you through the entire process to help you determine the value of your case and work to obtain the best result.
Texas and New Mexico: At-Fault States
New Mexico and Texas have at-fault accident laws. The insurer for the person who is at fault is financially liable or responsible for the payment of damages.
When you are injured in a crash, insurers will look to who is at fault to decide whether to pay a car accident settlement to a victim. Insurance companies do not readily pay claims even when their insured is at fault; they dispute liability, injuries, and medical expenses. If you have already started the lawsuit process and experienced adversarial behavior, it is not too late to call an attorney.
Texas follows a modified comparative negligence rule. Under this rule, found in Section 33.001 of the Texas Civil Practice and Remedies Code, an insurer or court will consider how much each party was at fault. If you are 50% or less at fault, you can recover compensation. However, your recovery will be reduced by your percentage of fault.
New Mexico car accident laws differ. New Mexico follows a pure comparative negligence rule, found in the New Mexico Statutes §41-3A-1. You can recover compensation after a crash, no matter your percentage of fault. For example, even if you are 60% responsible, you can still recover 40% of your compensatory damages from the other party.
Proving Liability in Car Accidents
To receive compensation from another party, or more likely their insurer, you need to prove they were directly at fault for the crash or liable by law, such as the employee-employer relationship.
When there is an employee-employer relationship, companies are typically responsible for the negligent conduct of their employees. For example, a company that sends a driver out who is tired and overworked may be at fault. A company that hires a driver with a bad driving record may be at fault. An experienced car wreck lawyer knows how to investigate all the circumstances surrounding the wreck in order to hold accountable all who are responsible.
Proving liability begins with gathering evidence after the car accident. Your lawyer will obtain a copy of the police report, pictures of the crash, any video footage available, and eyewitness statements. Depending on the complexity of the crash, your attorney may hire one or more experts to testify regarding the underlying cause of the accident and to help establish how you were injured from the wreck or what amount you were damaged.
The Car Accident Claims Process
The car accident claims process can be complex. An experienced car accident lawyer can help you navigate it seamlessly so that you don’t miss anything and maximize the compensation you can recover.
You must give the insurer notice of your first- or third-party claim within a reasonable amount of time after the accident.
Your claim will be assigned to an insurance adjuster. This is the person responsible for investigating your claim, approving or denying the claim, and negotiating a settlement.
Adjusters are required to investigate a car accident claim thoroughly and promptly. During this investigation, the adjuster will likely reach out to you for a statement, medical records, and other answers or documentation. We recommend you have a car accident lawyer handle this process.
You should never give the insurance adjuster a statement without first talking to an attorney. They will use anything you say against you wherever possible.
Approval or Denial of Your Claim
After an investigation, the adjuster will either approve or deny the claim based on the insurance policy coverage. If your claim is denied, a car accident lawyer can help you or pursue a personal injury lawsuit. Even if it is approved, the insurance company may not offer you an acceptable amount of compensation.
When your claim is approved, the adjuster will offer you a settlement. Do not immediately say yes. It is better to consider whether the settlement fairly compensates you. In most cases, it will be a low ball settlement offer. Your attorney can negotiate and pursue a higher settlement amount.
Auto Accident Insurance Claim Laws
Each state has insurance laws that dictate how insurance claims must progress and how an insurer must treat a claimant. Overall, insurers need to treat claimants with good faith and avoid unlawful and unfair business practices.
Texas Insurance Laws
The Texas car insurance law requires drivers to carry:
- Bodily Injury Liability: $30,000 per person and $60,000 per accident
- Property Damage Liability: $25,000 per accident
Additionally, insurers must offer Personal Injury Protection, which covers your medical bills, lost wages, and other non-medical expenses, and Uninsured/Underinsured Motorist coverage. If you do not wish to purchase either PIP or UM/UIM coverage, you must inform the insurer in writing.
If you file a first-party claim and your insurer does not address your claim in good faith, you may have a bad faith claim against your insurer. However, Texas does not recognize bad faith claims arising from third-party insurance claims.
New Mexico Insurance Laws
The New Mexico auto insurance law requires drivers to carry:
- Bodily Injury Liability: $25,000 for one person, $50,000 for two or more persons
- Property Damage Liability: $10,000 per accident
New Mexico has a similar bad faith law. If your own insurer treats you unlawfully during a claim, you may have a bad faith claim. However, like in Texas, this claim is only for an insured against the insurer, not for third parties who are treated unfairly.
Uninsured / Underinsured Drivers
If you were injured in a collision caused by an uninsured driver, talk with a car accident lawyer right away. If you carry uninsured motorist coverage, then your own insurance company may pay for your property damage or bodily injuries.
If you do not have UM coverage, talk with an attorney about pursuing compensation through a personal injury lawsuit. This may or may not be helpful depending on the at-fault driver’s income and assets.
When the other driver is underinsured, you can also utilize your own UM policy to cover the difference between the car accident settlement and your damages. If you do not have UM coverage, talk with us about filing a personal injury lawsuit.
Car Accident Lawsuits and Preparing for Trial
If the at-fault driver does not have auto insurance, has too little insurance, or the insurer denies your claim or refuses to settle for a fair amount, then you need to talk with an experienced car accident lawyer. Before accepting a settlement, there are some things to consider. You want to be sure your lawyer did their due diligence to maximize your claim.
Gathering Evidence and Discovery
To prepare for a car accident trial, your lawyer will perform a thorough independent investigation into the crash. Many investigations, however, are limited until you get to the discovery process. This is a pre-trial phase of litigation where information is exchanged with the other party.
By using interrogatories (questions the other party must answer), requests for documents, and depositions (out-of-court questioning of pertinent parties), you are able to obtain new information and records that were under the other parties’ control.
It can be very helpful to have eyewitnesses testify regarding what they saw and heard at the time of the accident. This is particularly effective with the witness is not your friend or family member. An objective third party who testifies that the other person is at fault in a car accident can sway the jury in your favor.
Going to Trial
If the insurance company reviews all the evidence and still refuses to make an acceptable settlement offer, your attorney can take your case to trial. At trial, a jury will determine fault and liability. They will also calculate your damages and award compensation.
Kemmy Law Firm has a team of trial lawyers who are not afraid to take insurance companies to court. We will fight for your right to reasonable compensation after a car accident.
Contact Kemmy Law Firm Today
Get a free consultation. We do not charge up-front fees, and you owe nothing unless you recover compensation.
When you work with us at Kemmy Law Firm, you are working with a family-run firm with more than 50 years of combined experience. We are dedicated and successful trial attorneys practicing in West TX, Hobbs, NM, Midland-Odessa, and across the Permian Basin.
Our team handles everything from catastrophic injury claims to complex business matters. We are here to fight for you. We dedicate our time and attention to your case and use every resource available to maximize your claim and obtain the best possible outcome.