Partly at fault, a minor crash, two years to file: injury myths that cost Texans

Yes, partial fault does not automatically end your claim

In Texas, you can still recover compensation if you were partly at fault, as long as you were not more than 50 percent responsible. Under the Texas Civil Practice and Remedies Code, a claimant whose share of responsibility is greater than 50 percent recovers nothing, and a claimant at 50 percent or less has the damages reduced by their percentage of fault. So the real question is rarely whether you made any mistake; it is how responsibility is divided among everyone involved.

I am a founding partner at Garcia, Garcia & Mullen, and personal injury is my practice. That fault rule is the most common misunderstanding I hear, but it is not the only one. Below are the beliefs that, in my experience, most often cost injured people money or time, and what Texas law actually says. This is general information, not legal advice; talk to a licensed Texas attorney about your own facts.

Myth: if I made any mistake, I should not bother

Under the proportionate responsibility rule, a jury, or the parties in a settlement negotiation, assigns each person a percentage of responsibility. If you were found 20 percent responsible for a crash because you were slightly over the speed limit, while the other driver ran a red light, your damages would be reduced by 20 percent, not eliminated. Only when your share is greater than 50 percent are you barred from recovering.

This is exactly why insurers work so hard in early conversations to get you to agree that you share the blame. A casual "I didn't see him until the last second" in a recorded statement can become the foundation of an argument that you were mostly at fault. Before you accept anyone's version of how fault should be divided, including your own, have the facts evaluated.

Fault also affects settlement value long before any jury is involved. Adjusters estimate how a jury would divide responsibility and price their offers accordingly. That is why the evidence on fault, gathered early and presented clearly, often matters as much to the final number as the medical bills do.

Myth: I always have two years to file

Two years is the general rule. The Civil Practice and Remedies Code sets a two-year limitations period for personal injury suits, and for claims arising from a death, the two years run from the date of death. But the general rule has exceptions, and the most dangerous ones involve government defendants.

Under the Texas Tort Claims Act provisions of the same code, a governmental unit is entitled to written notice of a claim within six months after the incident, describing the injury, the time and place, and what happened, and the law also recognizes city charter notice requirements. The City of Dallas notice of claim form, for example, quotes the city charter requiring written notice of a personal injury claim within six months after the injury. The statute has limited exceptions when the government already has actual notice, but relying on an exception is risky. If a city truck, a public bus, a government building or a public sidewalk was involved, treat six months as your deadline and get advice right away.

Myth: if I feel fine the next day, I was not really hurt

Adrenaline masks pain, and some injuries, particularly to the neck, back and head, can take time to show symptoms. Many people decline an ambulance, go home, and wake up a day or two later barely able to turn their head. Getting examined promptly protects your health first. It also creates a medical record that ties your symptoms to the crash.

The legal side of this myth is the treatment gap. When someone waits weeks to see a doctor, or stops treatment and restarts it later, insurers argue that the injury was minor or caused by something else. If you were in a crash and anything hurts, get checked, describe exactly what happened, and follow the plan you are given.

The same goes for telling your doctor the whole story. If you mention only the worst pain at the first visit, the record may not show the other areas that hurt, and an insurer may later argue those problems came from somewhere else. Describe every symptom, even the ones that seem minor.

Myth: a fast offer means the insurer is being fair

An early offer can feel like good news, especially with bills arriving and work missed. But an offer that comes before you have finished treatment is priced on what the insurer knows, which is often less than what you will eventually need. Once you sign a release and cash the check, the claim is generally closed for good, even if an MRI later shows a more serious injury.

Speed is not the problem; timing is. A fair settlement can come quickly in a simple case. The test is whether the number accounts for all of your medical care, including what is still ahead, your lost income, and the effect on your life. If you cannot answer that yet, it is too early to sign. A free consultation is a sensible step before accepting any offer on an injury claim.

Myth: the police report decides who was at fault

A crash report is important evidence, and insurers read it closely. But it is not the final word. Officers often arrive after the fact, rely on what drivers and witnesses tell them in a stressful moment, and may not have seen video or physical evidence that comes to light later. Insurers make their own liability decisions, and in a lawsuit, a jury decides.

If the report gets something wrong, that is not the end of the claim. Witness statements, photos, vehicle damage patterns, nearby business or traffic video, and in truck cases the vehicle's electronic data can tell a different story. The sooner that evidence is collected, the more of it survives.

It is also worth reading your report carefully as soon as you have it. Check the names, insurance details, the diagram and the narrative. Mistakes in the basic facts happen, and catching them early makes them easier to address.

Myth: the driver is the only one who can be responsible

Responsibility often reaches further than the person behind the wheel. A driver's employer can be responsible for a crash that happened on the job. In an 18-wheeler case, the trucking company, a cargo loader, a maintenance provider or a manufacturer may share responsibility. In a fall, the property owner, a tenant or a management company may be the right party, which I explain in when a Texas slip and fall is a real claim.

And when there is not enough insurance from the responsible party, your own policy may help. Personal injury protection pays regardless of fault, and uninsured or underinsured motorist coverage can cover what the at-fault driver's policy cannot. I explain how those coverages fit together in whose insurance pays your medical bills after a Texas crash.

Myth: motorcycle riders and pedestrians always get the blame

Riders and pedestrians often worry that they will be blamed simply because of how they were traveling. The law does not work that way. The same proportionate responsibility rule applies to a motorcycle rider as to anyone else: fault is divided according to what each person did, and a rider who was 50 percent or less responsible can recover, reduced by that share.

What is true is that these cases depend heavily on evidence, because an insurer may lean on assumptions about speed or visibility. Photos of the scene, the position of the vehicles, damage to the bike, helmet and gear, and witness accounts matter a great deal. Motorcycle crashes also often cause severe injuries, which makes documenting medical care and future needs especially important.

Myth: hiring a lawyer means a long trial and a big bill

Many injury cases resolve by settlement, and filing a lawsuit does not mean a case will go to trial. Hiring a lawyer also does not mean paying up front: injury firms, ours included, typically work on a contingency fee, so there is no attorney fee unless there is a recovery. The consultation is free.

What a lawyer changes is who the insurer is dealing with. Once we are hired, the calls and letters go to us, we gather the evidence, and we negotiate with the knowledge that we will file suit and prepare for trial if a fair offer does not come. Families facing the worst version of this, the loss of someone they love, have their own set of rules, which I explain in who can file a wrongful death claim in Texas.

Not every situation needs a lawyer, either. If no one was hurt and the only issue is the car, you can often handle that claim yourself, and an honest lawyer will tell you so. The value of a consultation is finding out which kind of situation you are in before you make a decision you cannot undo.

Getting a straight answer about your own situation

If any of these myths sounded familiar, the easiest way to sort out what applies to you is a conversation. Our consultation is free and confidential. You tell us what happened, we tell you honestly where you stand, including whether fault, deadlines or insurance limits are likely to be a problem, and whether we think we can help.

If you retain us, we take over communication with the insurers, investigate, and handle the negotiation and any lawsuit. For personal injury claims, there is no attorney fee unless we recover compensation. We represent people across Dallas, Tarrant, Collin, Denton and Kaufman counties, and our phone line is answered around the clock.

Questions people ask me