by Donald Ray Burger
Attorney at Law

Three things are needed to have a good personal injury lawsuit: (1) liability, (2) damages, and (3) collectibility. If any one of these elements is missing, the case will not be a good one.

The first requirement is liability. Liability means that the defendant or defendants did something that the law recognizes as wrong. Running a red light is an example. Manufacturing or selling a defective piece of merchandise is another. Liability is usually the most complicated part of a personal injury lawsuit. Each session of the legislature seems to bring changes to this area of the law. Court decisions can also impact on what is considered legally wrong. Also, the law allows some people and organizations to get away with things others cannot. For example, suits against governmental entities are very difficult. The old saying was that the king can do no wrong. Even today, in Texas, one must have the permission of the government before one can sue them; and that rule applies to the State, the County, the City, the school districts, and other governmental entities.

Likewise, if you wait too long to bring your lawsuit, the court can throw it out, even if the Defendant would have been liable had you sued on time. The time period within which you must bring your case is very complicated. Each type of claim has its own time deadline. These deadlines have exceptions that sometimes extend the deadlines. This is a matter for personal discussion with your attorney. Cities require notice letters that must be sent within the time the city charter provides. That time varies from city to city. The sooner you send out proper notice the better, is the shorthand rule if a city is a defendant. Other governmental entities require notice within six months. Most personal injury torts require that the lawsuit be filed and service requested within two years of the date of loss. Different rules may apply to minors. Even if you have two years to bring your case, there are advantages in seeing a lawyer sooner so evidence can be gathered and preserved.

The second element is damages. If the defendant, while drunk, runs a red light but you get stopped in time without injury, there are no damages. Thus, although there is liability for the wrong of running a red light while intoxicated, the lawsuit is not a good one because of the lack of damages.

Let us assume the wrongful conduct of a defendant has injured you. The kinds of damages for which you can be compensated are controlled by Texas law. The common law, statutes and courts define what the law recognizes as damages. Some of the things Texas recognizes as personal injury damages include:

(1) medical expenses;

(2) lost wages or loss of earning capacity;

(3) physical pain;

(4) mental anguish;

(5) disfigurement;

(6) physical impairment;

(7) loss of consortium;

(8) loss of household services;

(9) wrongful death damages;

(10) punitive damages;

(11) Prejudgment and post-judgment interest;

(12) attorney's fees (sometimes);

(13) costs of court.

Not every kind of damage is present in each case. Also, some kinds of damages are allowed in certain cases, but not in others. Damages are allowed both for past damages (up to the time of trial) and future damages (damages you are likely to incur after the verdict). Each kind of damage presents its own problems as to the kind of proof the court will require.

The last element of a successful personal injury lawsuit is collectibility. What one gets at the conclusion of a successful jury trial is a piece of paper called a judgment. A judgment is evidence that someone owes you money. But if the defendant has no money to pay your damages, your victory will ring hollow. In the personal injury lawsuit, collectibility usually translates into whether the defendant has insurance that covers his wrong or, in auto collisions, whether you have uninsured or underinsured motorist coverage. These coverages pay you if the person causing you harm has either no insurance or not enough insurance.

Most insurance agents sell you the minimum amount of uninsured/underinsured motorist coverage. Currently, this is $20,000 per person, $40,000 per occurrence. That is often inadequate, especially if several people are injured in your car. Check your policy. The UM/UIM limits cannot be greater than your liability limits, but I recommend they be equal to the liability limits. The cost is minimal. Also, check your PIP limits. PIP is "Personal Injury Protection." It is the portion of your insurance policy that pays you for medical expenses and a portion of your lost wages up to the amount of the limits. It is supposed to pay automatically, when you submit a claim, without your having to prove liability. Often insurance agents sell only $2,500 of PIP. Press them for more. It usually costs very little to raise your PIP limits to $10,000, and PIP is the portion of your insurance designed to be of direct benefit to you.

In conclusion, whether you have the elements necessary to make a successful lawsuit is sufficiently complicated to require the opinion of an attorney. Don't hesitate to call one, and do not wait too long. Those time deadlines are clicking.

Written by Donald Ray Burger, Attorney at Law
Last revised: May 8, 1996

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