Who To Sue And What Not To Say
So you had a car wreck in Texas and it was the other driver’s fault. He had insurance but his insurance company has denied your claim or is not offering enough money to settle the case. Who do you sue – the driver? Or his insurance company? Will the jury know he had insurance? In what county can I bring suit?
This article will help answer these questions and give insight into how Texas car wrecks are handled in our courts.
WHO IS THE PROPER DEFENDANT?
In Texas, you must sue the driver and cannot sue his insurance company. Why? Because courts have said so. More specifically, courts have said that an injured person has no direct standing to sue the other driver’s insurance company. The courts reason that since there was no contract between the other driver’s insurance company and the injured person, there is no privity of contract. Privity of contract means that only the parties to the contract can sue each other for any perceived violations of the terms of the contract.
But doesn’t this create confusion for the jury? Why should you sue the driver when he has no authority to pay you? Shouldn’t the jury be told that this is really a dispute between you and the other driver’s insurance company? What if the at-fault driver is a very sympathetic person against whom no jury will want to find fault? What if the jury thinks any money they award will be paid directly from the sympathetic defendant’s own funds? What if the jury believe the person you have sued has no money to pay the damages? Wouldn’t the jury be more likely to award higher damages if they knew that the Defendant’s insurance company is responsible for paying the defendant’s attorney as well as any damages the jury awards?
These are valid concerns for a Plaintiff and in most cases, these concerns actually do work against the Plaintiff. Some states have acknowledged these concerns and have passed laws allowing the injured person to sue the other driver’s insurance company directly. These are called “direct action states”. Unfortunately, Texas has chosen not to correct this unfairness and we are stuck with suing the other driver and not his insurance company.
CAN YOU EXPLAIN TO THE JURY THAT THIS IS REALLY AGAINST AN INSURANCE COMPANY?
Just because there is no privity of contract shouldn’t stop you from explaining to the jury that the Defendant you have sued has insurance and the insurance company will be responsible for paying any damages they award, right? Well … not exactly. The Texas Rules of evidence prevent a Plaintiff from doing any of this. The Plaintiff is prohibited from mentioning to the jury that the other driver was insured, that the adjuster has refused to offer a proper settlement, that the defense attorney is working for the insurance company, or that the insurance company will be on the hook for any damages they award.
But how can this be fair to Plaintiff? Of course, it is not fair, but the insurance industry has a strong lobby and Texas is very pro-business and pro-insurance. The prevailing wisdom in the Texas legislature is that allowing a jury to know the defendant has insurance would influence the jury to award higher damages or would otherwise encourage the jury to side with the Plaintiff against a big, bad insurance company.
WHERE SHOULD YOU SUE?
Texas law allows you to sue either in the county where the accident happened or in the county where the Defendant resides. Of course, if the Defendant consents to be sued in a different county, or does not protest being sued in a different county, suit can indeed proceed in a different county. This would be extremely rare but I suppose there could be some circumstances in which this might happen.
When evaluating the value of your injury case, remember that the jury will not know the Defendant you have sued has insurance. This will make it much harder to get high damages, especially if the Defendant is a sympathetic figure.
Law Offices of Robert Rodriguez