Fatalities: Car Accidents and Lost Loved Ones
Few people will drive their entire adult lives without getting into at least a scrape or two with another car. Such minor accidents are sort of an expected reality, but no one ever truly expects a car accident to claim the life of a loved one. The shock of losing a family member soon gives way to monumental grief, which ultimately gives way to a desire to see the responsible party held accountable. But how does one know where to begin?
The fact of the matter is that a fatal car accident creates a situation where there are tremendous damages and losses. If the victim who lost their life was the breadwinner for a family, then the financial ramifications of their death are even more pronounced, and far too often there’s only a little bit of insurance money to cover the negligent driver. Put simply, filing a claim against the negligent driver’s car insurance isn’t always going get you very far in terms of recovering from your loss, and it doesn’t always hold the person who caused the accident fully accountable for their actions. As such, filing a lawsuit against the negligent driver is often the only way to get adequate compensation and/or feel that justice was served.
In this article, Texas-based car accident attorney Michael Grossman explains what rights and legal remedies are available to those who have lost a loved one in a car accident.
Questions answered on this page:
- What is a survival claim?
- What is a wrongful death claim?
- Who can file a lawsuit after a fatal car accident?
- How can an attorney help me and my family?
Beware of Early Settlement Offers
There are a couple of things that you need to know from the outset: Rushing into a settlement with the other driver’s insurance is a dangerous strategy. When you settle with an insurance carrier, you usually release the defendant (the person who caused your loved one’s death) from any future liability. Your case against them is the one chance to hold the defendant accountable for their actions, so please use caution when settling with their insurance carrier. The last thing you want to do is unintentionally let the defendant off the hook in exchange for a relatively small payout.
It is important to remember that you have two years from the date of the accident to settle. There is no need to rush. The insurance company may make it seem like that’s the case, but it’s always best to make sure that there are no other avenues of compensation to pursue or other claims to file before settling.
Since a fatal car accident involves two areas of law, car accident and wrongful death, you and your attorney need to be familiar with both. There are many attorneys out there who handle just car accident cases and relatively few who handle wrongful death cases.
Because we have years of experience in both areas of the law, we’re going to use that knowledge and experience to explain fatal car accidents in a simple way.Myth - Insurance Carriers Must Pay Accident Victims This is not how insurance works at all. In this article, we address the myth and explain how insurance policies actually do work...Read More >
One Accident, Two Claims
In a fatal car accident, there are potentially two claims that the surviving family members are able to file: the a survival claim and a wrongful death claim.
The first of the two claims is called the survival claim and it’s based on the Texas Survival Statute. In a nutshell, it allows the representative of the decedent’s estate (usually a close family member or executor of a will) to take over the personal injury claim their deceased loved one would have had, had the accident not been fatal.
The key element to a survival claim is the issue of whether or not there was conscious suffering before the defendant passed away. If someone was killed instantly, there are no grounds for a survival claim. This may sound like legalese and a bizarre part of the law, but it makes sense when you understand the larger picture. Those injured in an accident can collect damages for pain and suffering. It varies from cases to case and accident to accident, but a way to think about pain and suffering damages is to ask, “How much someone would have to pay you to endure a specific type of suffering?”
(We freely admit that this is an uncomfortable way to think about injuries) While this standard has absolutely no legal basis, it is useful in gauging how people instinctively value certain injuries. For instance, some people might say they would let someone cut off their finger for $100,000, while others might be willing to do it for $15,000. There is no right or wrong answer, but it is doubtful that anyone alive would let someone cut off their finger for $100. From this exercise we can get a range for what the pain of losing a finger might be worth.
Returning to the survivor benefit, in really horrific accidents, pain and suffering payouts can be quite high. Without the survivor benefit, in certain situations, the law would create a large financial incentive for the person responsible for an accident let a suffering, badly injured person die. The survival claim is designed to remove that incentive from the law. So while at first glance it may seem strange the the deceased person had to suffer in or for their to be a survival claim, in the context of the problem the law was trying to address, it makes sense.
Wrongful Death Claims
The second claim that certain family members have in a fatal car accident is a wrongful death claim. This is a claim that you bring for the losses that you have suffered due to your loved one’s death. For example, a wife might depend on her husband to financially provide for their family. Likewise, a child depends on their mother for their basic needs. There are very real losses that you can calculate by looking at things like job salaries, expenses, etc. But there’s also mental anguish and the loss of consortium (the value that there is in having a spouse, parent, or child in your life) that must be accounted for.
As we said earlier, no amount of money in the world can ever fix the sorrow of losing a loved one. However, there are ways of determining the “value” of your claim that an experienced and seasoned attorney will know.
It is important to know that only certain relations have the right to bring a wrongful death claim under Texas law. They include:
- Spouses– Any legally recognized spouse has a right to file a wrongful death suit when their spouse is killed in a car accident. After the Obergefell v. Hodges (2015) decision of the Supreme Court, this class also includes lawfully married same-sex spouses. In addition, since Texas recognizes informal marriage, more commonly referred to as common law marriage, as legally valid, those spouses are also eligible to file a wrongful death suit.
- Parents– This is limited to biological and adoptive parents. If a step-parent has not adopted the deceased then they are ineligible to file a wrongful death claim
- Children– This includes both biological and adoptive children.
The Insurance Policy Limits Determine The Best Approach
The value of the liability policy for the defendant driver is going to dictate how you handle your case against them. In every case, the insurance company is highly incentivized to fight because they have a duty to protect their insured driver from claims made against him, and they want to protect their money. One rule that always holds true is that the more insurance money is only the line, the harder the insurance company will fight. Now, the tricky part is that there are different schools of thought, on behalf of insurance carriers, regarding the best way to fend off your claim.
Some of the more common tactics are:
- Denying your claim and dragging the legal process on for months to make you willing to settle for anything just to get it over with
- Insisting that their insured driver wasn’t entirely to blame
- Offering a settlement up-front to avoid any future legal action. This tactic isn’t about saving the carrier money (unlike the other two). This is more about protecting their insured. To clear up any confusion, they’re required to protect their insured, they just usually first try to save themselves as much money as possible, then, failing that, they will address their secondary priority, which is to settle for the policy limits in order to protect the defendant from future liability.
So the answer is to just take the money from the policy and move on, right? Not necessarily. The insurance company is hoping you’ll make that decision because it effectively releases them from any further legal action and ends the matter, for all intents and purposes. We’ll cover this in the next section, but if there’s any other type of claim to file, settling with the insurance company beforehand effectively ruins those potential claims.
As we mentioned earlier, the value of the insurance policy usually dictates the most appropriate strategy. This is for two reasons. One, the tactic they choose (as described in the list above) to use against you is often tied to the value of the policy, and two, the approach your attorney takes will affect the cost of pursuing the case, so he needs to know when to throw everything he can at a defendant and when to try to accomplish a similar goal at less expense. Naturally, this takes an experienced attorney who knows what is going to be thrown at his client.
Here’s an example: If the insured driver’s policy is only worth $30,000, for example, then it doesn’t make sense to launch an expensive investigation and hire expert witnesses to prepare reports of their findings. If your attorney does that, he’s likely driving the cost of the case far higher than the value of the claim.
On the other hand, if the insurance company decides to fight you on paying out the insurance policy, then you need to have a strategy for that too. Why would the insurance company do that? Well, they know that their at-fault driver is only covered up to the maximum limits of the policy. If that policy is not worth a lot of money, the insurance company may decide to fight your claim. After all, what have they got to lose? The worst case scenario, from their point of view, is that they are taken to court and forced to pay the policy limits to you. This is where having an attorney who knows about Stowers Demands can really help your case.
When the insurance company is putting up resistance and you have a perfectly valid claim, there is something called a Stowers Demand that can be used against them. A Stowers Demand is a demand for the entire limits of an insurance policy under threat of lawsuit for even more money. If utilized correctly by a skilled attorney, this will usually motivate the insurance carrier to do the right thing, since it creates significant additional liabilities for them if they unfairly drag the process out.
Pursue All Possible Claims
As we said earlier, settling with an insurance company up front releases them from future liability. What does that mean? Essentially, you may have more claim(s) to file, but the insurance company won’t tell you that. If your attorney does their job well and sufficiently investigates your case before filing a claim, they’ll know whether there’s more compensation to pursue or other policies to file against.
If there are multiple defendants (people other than the driver that caused the accident), you have the chance to get more compensation. Again, we know that all of this isn’t about getting a big paycheck, but the damages (losses suffered) in a fatal car accident aren’t typically going to be covered by a small insurance policy, which warrants leaving no stone unturned in determining other means of compensation.
Far too many attorneys would be happy to take your case, rack up some expenses, and simply go after the small car insurance policy. Any attorney worth their salt is going to know how to get the maximum amount of compensation with the least amount of effort and expense for their clients. If that’s pursuing a small policy, then they’ll know what to do. If that’s pursuing multiple defendants and policies, an experienced attorney will know how to handle that as well.Myth: Pedestrians Always Have The Right of Way This has never been true, yet most people believe it. There are, however, situations wherein pedestrians do have the ROW...Read More >
Final Thoughts on Handling Your Car Accident Fatality Case
We hope that this information has helped you understand how the law works in regard to fatal car accident claims. The bottom line is that even though there’s often not enough insurance on the defendant’s car to cover such significant losses, there may still be other claims to pursue and other insurance policies that apply. Again, though, you can’t do that if you rush to settle the claim with the insurance policy.
By settling with the insurance company or giving them too much information, you put all your potential claims at risk and reduce the chance of getting all the compensation that’s available to you. Justice needs to be carried out and those responsible for your loved one’s death need to be held accountable. When insurance companies decide to get greedy with other people’s money, well, that’s just wrong.
A lot of attorneys will tell you to take any settlement you can get and run. Others might try and file as many lawsuits as possible, hoping at least some of them will stick. But a good attorney will carefully investigate whether you have potential claims and make sure that all your demands and documents are bulletproof. It’s the only way to get a remotely good outcome. If you mention any of this to a lawyer and they give you an evasive non-answer, then you’re speaking to someone who doesn’t know what they’re doing. Get an attorney with 25 years of experience under their belt and dozens of wrongful death cases that we’ve successfully litigated: call Grossman Law Offices at (855) 326-0000.
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