Recovering From an Unlicensed, Uninsured Texas Driver

Attorney Answer

Proving he caused this is the easier half; finding money to pay for it is the harder half, and the place to look first is your own policy. Take those in order.

On fault, speed is your strongest fact. Tex. Transp. Code § 545.351(a) provides that "An operator may not drive at a speed greater than is reasonable and prudent under the circumstances then existing," and § 545.351(b)(2) requires a driver to control speed as necessary to avoid colliding with another vehicle that is on or entering the highway in compliance with law. Texas also has rules requiring a driver to stay in a marked lane and to change lanes only when it can be done safely, and rules governing a left turn across oncoming traffic. Those duties are set by specific sections, so raise them with a lawyer, who can match the provision to your intersection.

Expect the argument that a left-turning driver bears some of this. Texas splits fault instead of choosing one driver. Under Tex. Civ. Prac. & Rem. Code § 33.003 the trier of fact assigns each party a whole-number percentage of responsibility. Section 33.001 provides that "In an action to which this chapter applies, a claimant may not recover damages if his percentage of responsibility is greater than 50 percent." If your share is 50 percent or less, § 33.012(a) reduces your damages by that share; under § 33.013(a) each defendant pays only its own percentage, unless that defendant is more than 50 percent responsible or acted in concert in the intentional conduct § 33.013(b) lists.

He was required to carry coverage. Tex. Transp. Code § 601.051 prohibits operating a motor vehicle in Texas unless financial responsibility is established for it, and § 601.191 makes a violation an offense punishable by a fine of $175 to $350 for a first offense and $350 to $1,000 for a repeat. That does not create money for you, but it matters to the next two points.

First, your own policy. Tex. Ins. Code § 1952.101(b) prohibits an insurer from issuing an auto liability policy in Texas without providing uninsured or underinsured motorist coverage, and § 1952.101(c) provides that "The coverage required by this subchapter does not apply if any insured named in the insurance policy rejects the coverage in writing." Absent a signed written rejection, that coverage should be on your policy, and an uninsured driver is exactly what it is for. Personal injury protection works the same way under § 1952.152, and § 1952.155(a) makes those benefits payable without regard to fault or to any collateral source.

Second, whose car was he driving. If the vehicle belonged to someone else, that owner may be liable directly. In Schneider v. Esperanza Transmission Co., 744 S.W.2d 595 (Tex. 1987), the Texas Supreme Court set out the elements of negligent entrustment: entrustment of a vehicle to an unlicensed, incompetent, or reckless driver whom the owner knew or should have known to be so, and that driver's negligence causing the crash. An unlicensed driver is the classic version of that claim, and the owner may have insurance he does not.

What you can do

1. Request the officer's crash report, and check what it says about his license, his insurance, and who owns the car.

2. Ask your own insurer in writing for your full policy and for any signed written rejection of uninsured/underinsured motorist coverage or personal injury protection, then open a claim under both.

3. Photograph your vehicle before it is released, and keep the total-loss paperwork and any repair estimates.

4. Save the names and phone numbers of witnesses, including the driver who was turning across from you, and ask nearby businesses for camera footage soon.

5. Ask a Texas lawyer about a claim against the vehicle's owner as well as the driver. Most lawyers offer a brief initial call at no cost, and a few minutes on your specific facts is worth more than any general guidance, including this page.

⏱ Time limits apply. Tex. Civ. Prac. & Rem. Code § 16.003(a) sets two years from the day the cause of action accrues for personal injury and for injury to property. When that period started for you, and whether your facts affect it, is a question for a Texas attorney reviewing the file, not a date to compute from a general rule.