There are probably no four words in the English language that can give you alarm in quite the same manner as hearing someone say “you have been served” for the first time. You look at the serving officer or investigator almost dumbfounded as your mind races to answer the question “Why me?” After fumbling through the papers you realize that you have been sued over a car accident that may have happened as far back as two years ago. So what happened next?
How long afterward can you be sued over a car accident in Texas?
Lawsuits over car accidents may be filed up to two years after the collision in Texas unless the injured party is a minor. Minors have until their 20th birthday to bring a claim for their personal injuries and medical bills post-age 18. However, medical bills incurred before the age of 18 are the obligation of the parent or guardian and thus, fall under the adult’s two-year statute of limitations. Failure to file within the statute of limitations will result in the claim being barred.
What should I do after being sued over a car accident in Texas?
When you are sued over a car accident in Texas, your first notice will be when the process server serves you with legal papers. The first thing you should do is call your auto insurance company and report that you have been sued and let them know that you request they provide you with a defense. Their contract obligates them to provide you with a lawyer to defend you so long as you take no steps that void your contract.
You only have a limited amount of time to file an Answer after you are sued over a car accident in Texas or the court will assume you admit the other side’s allegations and grant a default judgment. You have until 10:00 a.m. on the first Monday following the expiration of 20 days after the date you were served to file your Answer. Thus, you do not want to delay in notifying your insurance company and turning over the papers you were served with to them. They will need time to retain counsel and get the information to them.
What if I did not have auto insurance at the time of the wreck?
If you fail to carry the minimum insurance limits required by the Texas Financial Responsibility Act, then you are going to need to hire an attorney to defend you and pay them out-of-pocket. You can defend yourself in Texas, however, this is ill-advised. Texas Judges expect you to know all the laws and rules when you walk into the courtroom and will not take time to educate you. Opposing counsel cannot ethically give you any legal advice because they represent your adversary. If you miss a deadline because you do not know the filing periods, you may have your pleadings stricken and/or have a default judgment taken against you.
What if I am in an accident while driving someone else’s car?
In Texas, insurance coverage follows the vehicle first and the person second. This means that if there was an insurance policy on the vehicle that does not exclude you from coverage, then that policy is the primary insurance and must treat you as their insured for purposes of the accident. If they fail to have sufficient liability coverage or you are excluded, then any other auto policy on which you are the named insured becomes responsible.
Should I notify the insurance on the car or my own insurance if I am sued?
If a lawsuit is filed against you and you were driving someone else’s car at the time you caused an accident, you would be wise to notify both insurance companies of the lawsuit in writing and via a phone call, Since time may be of the essence, giving them as much notice justifies a phone call, but you also want to have proof you notified them. A certified letter with a return receipt requested or an email with proof of receipt (a response email from the company) are both good documentation.
Why am I being sued for a car accident instead of my insurance company?
In the state of Texas, a person who is caused injury by another’s actions must sue the individual actor and not his insurance company. The plaintiff has no choice in the matter because the Texas Supreme Court has held that there is no direct cause of action against the other driver’s insurance company. You can, however, sue your own insurance company when you are entitled to benefits such as uninsured or underinsured motorist benefits.
Can I be sued for more than my insurance policy limits?
You will almost always be sued for more than the amount of your policy limits because this places pressure on your insurance company to settle the case for the full policy limits. There is a common tactic that lawyers use called a stowers demand that is often sent to your insurance adjuster. A stowers demand is a demand to pay an amount within or up to the full policy limit with a time limits placed upon how long they may accept it. If they chose not to accept it, they are placing their own insurance driver at risk of having a judgment for more than the policy limits take against them. This triggers a duty to act in the insured’s best interests, not the insurance company’s best interests. Failure to do so can potentially make the insurance company liable for any amount over the policy limit.
What if a they recover a judgment for more than my policy limits at trial?
If a judgment for more than your policy limits is taken against you and the insurer was properly stowerized, then the other party will likely seek an assignment of your rights against the insurance company for breach of contract and bad faith and will then pursue your insurance company for treble damages under the Texas Deceptive Trade Practices Act. The can, however, pursue you for the amount above the policy limits (excess). It is very important that you seek legal advice through independent counsel of your own if you or your insurance company receives a stowers demand letter.
Related reading: What is a Stowers Demand?
Can they put me in jail in a personal injury lawsuit?
Jail time is not a remedy available in a civil personal injury lawsuit. You can be charged with a crime as a result of a car accident if you were committing a crime when it happened (such as driving under the influence). However, that is a matter for the police and not for civil attorneys handling the personal injury claim.
What happens if I do nothing after being served with a lawsuit?
If you are served with a lawsuit and fail to file an Answer on or prior to 10:00 am the first Monday after 20 days expire from the date of service, then the court, on motion of counsel, may enter a default judgment. If you continue to do nothing, the plaintiff will set a hearing and prove up the value of their damages so that a final judgment can be entered. After the Judgment is entered, they may begin trying to collect on the judgment. (See my prior blog Suing Uninsured Drivers for a discussion of what assets a judgment may be executed on for collection.) You may also seek an attorney to help you challenge the judgment. However, it is a much easier burden to defend the case before a judgment is entered than afterward.
Conclusion
If you are sued over a car accident in Texas, the best thing to do is pick up the phone immediately and report it to your auto insurance. You need to provide them with the papers and request they provide you with a defense. From that point on, you need to cooperate with your insurance company so that they can defend you and no judgment is taken against you.
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