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The Truth About the Family Member Exclusion in Texas Automobile Policies

At one time most Texas automobile liability insurance policies included a so-called family member exclusion which foreclosed liability coverage for any claim made by a family member against a family member. This exclusion was included in these policies based upon the insurance industry’s argument that providing coverage for claims by family members against family members would encourage fraud and collusion. In reality, excluded coverage for that class of individuals most likely to be injured, other than yourself, in an automobile collision other family members. It was in this backdrop that the Texas Supreme Court, in 1993, took up the issue of the family member exclusion in the case of National County Mutual Fire Insurance Co. v. Johnson, 879 S.W.2d 1 (Tex. 1993).

In Johnson, a policy holder’s truck collided with another automobile. His wife, a passenger in the truck, was injured and subsequently brought suit against him for negligence. Id. The policy-holder’s insurer, however, denied his request for a defense, stating that “Endorsement 575,” a family member exclusion clause, precluded coverage for a liability claim brought by a family member such as his wife. Id. The policy-holder filed a declaratory judgment action to determine his rights under the policy, while the insurer counterclaimed, asking the court to determine whether Endorsement 575 was valid under Texas law. Id.

On appeal of an adverse judgment in the trial court against the insurer, the Texas Supreme Court held that to the extent the family member exclusion purported to deny a family member’s claim within the minimum liability insurance limits required by Texas law, such exclusion was invalid:

  • Here, the Board’s approval of the family member exclusion results in a situation in which a claimant for damages resulting from an automobile accident is not allowed to recover damages under an automobile liability insurance policy that the legislature statutorily requires to protect such claimants from losses. The exclusion prevents a specific class of innocent victims, those persons related to and living with the negligent driver, from receiving financial protection under an insurance policy. Such a result is clearly contrary to the express legislative mandate. The Board’s action in approving a family member exclusion providing for such scenarios is inconsistent with the statutory purpose of the Act, and thus their approval of the exclusion is ineffective.

Id. at 3.

Hence, in Texas a family member may make a claim against a relative’s motor vehicle liability insurance for injuries received in a motor vehicle accident caused by that relatives negligence up to the minimum liability limited provided under Texas law currently $30,000 for each injured person, up to a total of $60,000 per accident, and $25,000 for property damage per accident. Despite this fact, even today insurers will sometimes purport to deny claims in their entirety under the family law exclusion. So arm yourself with the truth, and be aware that even if your automobile accident injuries were caused by the negligence of a family member, 30/60/25 coverage is still available to you as a matter of law.

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¹This basic coverage is referred to as 30/60/25 coverage.

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Who has a claim when someone is wrongfully killed

When a person is wrongfully killed in Texas due to the fault of another person, company, or a defective product the law provides two types of claims that may be brought. The first is a wrongful death claim which may be brought by the surviving spouse, parents and children of the deceased. Siblings and other relatives may not bring a claim. The damages that may be recovered in a wrongful death claim include pecuniary loss (loss of the care, maintenance, support, services, advice, counsel, and contributions of a monetary nature that the survivor would have received from the decedent), loss of companionship and society (such as loss of love, comfort, and companionship the survivor sustained), mental anguish (emotional pain, torment, and suffering), and loss of inheritance. Of course the person bringing the wrongful death claim will have to have evidence of these damages. Although it is virtually impossible to put a dollar value of some of these things, juries in wrongful death cases are asked to do so.

The second type of claim that may be brought in Texas when someone is wrongfully killed is a survival claim. This claim may be brought by the estate of the deceased or a representative of the estate. The damages that may be recovered include the pain and mental anguish that the decedent experienced before his death, medical expenses for the treatment of the decedent’s injuries, and funeral and burial expenses. When a person dies instantly in an accident and does not incur any medical bills, a survival claim is limited to the funeral and burial expenses. On the other hand if the decedent experienced suffering before death then damages for pain and mental anguish may be awarded.

Exemplary or punitive damages may be recovered in both survival and wrongful death claims if there was gross negligence. The purpose of these damages is to punish the wrongdoer and to deter such conduct in the future.

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So the Insurance Company won’t treat you fairly…Now What?

By Texas Personal Injury Attorney, Scott Robelen

You have been injured in a car accident that was not your fault. You have mounting medical bills, you have taken time off work because of your injuries and to go to treatment and you have experienced a great deal of physical pain and emotional drama.

You felt the insurance company might treat you fairly so you tried to settle your claim on your own, only to find that the insurance company doesn’t care about you. You hired an attorney to take you through the claims process and still the insurance company refuses to pay you what would be deemed by any moral standard to be fair. What do you know? The only answer: Welcome to Litigation.

Litigation is the process of pursing your claim against the other driver through the court system. Make no mistake, this is not an easy process nor is it a pleasant one for any of the parties involved. The first step in the process is confirming the facts of the accident, the nature and extent of your medical care and the extent of your monetary losses, including medical bills and lost wages. Once the appropriate defendant has been identified, a lawsuit is prepared on your behalf, and we begin efforts to locate the defendant so we can serve them with the lawsuit.

You are now approximately 60 days into the litigation process. The defendants insurance company hires an attorney to represent the other driver and files an answer with the court essentially denying all of your allegations. At this point, the case is at issue.

Along with filing the answer denying your claims, the defendants attorney will send you written discovery requests. These will consist of requests for disclosure, interrogatories, and request for production of documents.

The disclosures that you will have to answer will apprise the defendant of the exact nature of yours claims, the extent of monetary damages that you are claiming, and all persons whom you believe may testify on your behalf when this case eventually makes it before a jury.

The interrogatories are a series of written questions to you regarding the nature and extent of your claim, the nature and extent of your injuries, your medical history, your previous claims history, and to a certain extent much of your personal history including educational history and any criminal history that you may have.

The request for production of documents is the defendants opportunity to obtain from you any documents you intend to use at the trial of this case, including medical bills, medical records, police reports, photographs and any other written or recorded documents that you have that you think might be helpful in the trial. Of course, the litigation staff here at Bailey & Galyen will assist you every step of the way in responding to all of the defendants written discovery requests. At the same time we will have sent similar requests for discovery to the other driver which they will answer with the assistance of his or her attorney.

You are now approximately 4 months into the litigation process. At this point, some courts will allow us to request a trial date, which will generally be 9-12 months from the date of our request. In most other instances, the court will assign us a trial date at its convenience which, again, will generally be 9-12 months from the time the written discovery has been completed.

During the time leading up to the first trial setting of your case, your attorneys will be busy collecting your medical bills, records and evidence of lost wages in admissible form. You see, we can’t simply show your medical bills to the jury. The medical bills and records have to be verified by affidavit from each one of your doctors. Depending upon how many doctors you have seen, this process could take as long as 6 months and cost between $1500 and $3000.

At the same time, your case manager will be scheduling the depositions of the parties and witnesses in the case. Depositions are a process through which each party can find out what the other party is going to say at trial. You will be side by side with your attorney in one of our conference rooms, in the presence of a court reporter and you will be placed under oath to tell the truth the whole truth and nothing but the truth. You will then be interrogated by the other sides lawyer regarding anything from your past personal history to your current medical care and condition and all the facts and circumstances surrounding not only this accident but any other accidents you may have had in your entire life. You will be prepared for your deposition by your attorney shortly before that your deposition is scheduled. It is a simple yet important process in your lawsuit. Of course, the other driver will also be interrogated at length by your lawyer regarding their version of the accident. Additionally, any other persons who have claimed to have witnessed the accident will also be subject to the same interrogation so that their testimony may be read at the trial of your case.

You are now 8 months or more into the litigation process. You have a trial date sometime in the next 6-12 months. However, before the court will allow you to try your case before a jury, the court will require you to attend mediation. Mediation is simply an informal settlement conference held at the office of another lawyer, known as a mediator. The mediator, while generally appointed by the Judge does not have the power to force the parties into a settlement. The mediator will simply discuss the pros and cons of your case with you in the presence of your lawyer and will see if there is some middle ground between you and the insurance company in terms of settlement. At the end of the day, if the insurance company makes you an offer that you can live with, even though you may not be entirely happy with it, the case will be resolved and there will be no further litigation required. You will be paid in 2-3 weeks following the mediation, and all of your medical bills will be taken care of from the amount of the settlement.

Following an unsuccessful mediation, you will notice a decrease of activity in your case. That is simply because we are now waiting for our assigned trial date. Trials generally start on a Monday but unfortunately, we never know until the Thursday before the Monday trial setting whether or not we will be called to trial. The reason for this uncertainty is because the courts will set 5-10 cases for trial on any given Monday knowing that half of those cases will settle, and some of those cases will not be ready for trial. Generally, the oldest case on the courts docket that is ready for trial is the one that is called. Again, we will not know whether we are called to trial until the Thursday preceding the Monday trial setting.

There is a strong likelihood that you will not be called to trial on your first or even second trial setting. Again, this will seem to you like nothing is happening in your case and you would be correct. We are simply waiting for the next trial setting because all of the work in your case has been done and the case is ready for trial. Once the case is called to trial, your attorney will meet you on the Friday before the trial setting to prepare you to testify. The following Monday you will meet your attorney 30-45 minutes prior to the trial and the trial will begin before the assigned Judge.

Like the litigation process the trial process consists of several parts. First, the Judge and the two attorneys will have a pre-trial conference to discuss the evidence at trial and other matters about procedure. After that, the jurors for your case will be called to your court room and the lawyers will have an opportunity to question potential jurors to seat a jury of either 6 or 12 fair and impartial jurors. Once the jury is seated, normally around lunch time, opening statements are given by each side. Following opening statements, the court takes testimony, including your testimony, about the accident and the nature and extent of your injuries and damages. Often times your doctor will also be called to testify about the nature and extent of your injuries as well as any future medical expenses that you can expect as a result of the accident.

Following such testimony, the defense has an opportunity to present their side through testimony of the defendant and any other witnesses they want to call. Once they have done that, both sides rest and close their case and the courts instructions are read aloud to the jury. The jury then takes the written instructions into the jury room where the jury will deliberate and decide two questions: Were one or both of the parties negligent in causing the accident; and what are the nature and extent of the damages to which the Plaintiff is entitled. If the jury finds that the defendant, the other driver was negligent in causing the accident and awards your money, a judgment will be rendered in your favor for the amount of damages that the jury has found to which you are entitled. The insurance company will finally be required to pay whatever the jury has decided you are entitled to.

As you can see litigation is a very long process. It is a stressful process from beginning to end and it is not a pleasant process for either the plaintiff or the defendant. The bottom line is if you can resolve your case against the other driver and your insurance company for an amount of money that you can live with, even though you don’t think it is fair, it is in your best interest to do so. However, in other circumstances where the insurance company simply refuses to pay you for what you think is reasonable, our litigation attorneys here at the law firm of Bailey & Galyen are ready, willing and able to step up to the plate for you and take your case from start to finish all the way through the litigation process to get you the justice you deserve.

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TEXAS TORT REFORMERS ONLY LOVE THEMSELVES


In 2003, Texas tort reform advocates and activists mutilated Texas medical malpractice laws to the point that innocent victims of emergency room negligence cannot hold the hospital, doctors or staff responsible. They were also successful in getting an amendment to the Texas Constitution passed that limits non-economic damages assessed against a provider of medical or health care to $250,000.00 – no matter how severe the medical negligence or resulting injuries – and, after January 1, 2005, the ability to pass laws that will limit awards in all other types of cases.

They did this by scaring Texans with exaggerated claims of doctors leaving the state because of lawsuit abuse and high medical malpractice insurance rates. This politics of fear moved Texans to side with the tort reformers. The tort reformers sole purpose in medical malpractice reform was to hit trial lawyers in the pocket book. They used the medical profession as their poster child, and it worked.

Nine years later there is significant decrease in the number of medical malpractice cases being filed because of these damages caps, but with little or no significant decrease in medical malpractice insurance rates. The sole winner is the insurance industry. The hands-down losers are the innocent victims of medical malpractice.

The tort reformer supported, anti-consumer Texas Supreme Court has taken this entire travesty one step further, and now, even the medical profession is victimized. The Texas Supreme Court recently expanded the reach of and scope of the Texas Medical liability Act to include injuries in the medical setting not related in any way to the medical care being provided. It has now held that when an injured employee of a medical provider files suit against his or her employer, that employee must file an expert report supporting their case with 120 days of filing the lawsuit. The Supreme Court included these kinds of claims in the Act’s definition of health care as an act or treatment performed or furnished, or that should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment or confinement TEX. CIV. PRAC. & REM. CODE 74.001(a)(10). This expert report requirement increases the cost and difficulty of what should be no more than case where you hold the occupier or owner of the premises responsible for the dangerous condition that caused the injuries. In the Act, “expert report” means a written report by an expert that provides a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed. This expert report provision is onerous and is used in medical malpractice cases to deny compensation to innocent victims of medical negligence.

Further, that act or treatment is defined in the Act under the definition of a health care liability claim to mean a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract. TEX. CIV. PRAC. & REM.CODE 74.001(a)(13).

The Texas Supreme Court’s first perverted interpretation and application of the Act came when it ruled that a injuries sustained by a patient as a result of a broken hospital bed came within the meaning of the Act. That interpretation benefited the medical providers because it kept them from getting sued for patient and visitor injuries occurring on their premises, and they did not mind that at all. Its second perverted interpretation and application of the Act is directed at employees and others injured in the health care setting but who are not receiving any medical care.

The loyal poster child that got tort reformers what they wanted are their newest innocent victims, and they have been put on a gurney and rolled out of the facility with the innocent victims of medical malpractice. Those in the medical provider field who believed there were too many frivolous malpractice lawsuits ironically now have to file a medical malpractice lawsuit to be compensated for the injuries they received providing medical care.

Why did the Supreme Court do this? Because the tort reformers and the Texas Supreme Court believe all personal injury lawsuits are frivolous and litigants are not entitled to just compensation. The Texas Supreme Court has closed Texas’ courthouse doors to all innocent victims in the medical care setting.

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