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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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The Trial


Although most accident cases settle before trial, there are a few that actually get to a jury. Knowing this, every case in pre-litigation is handled with litigation in mind so as to have a file prepared to go to litigation if the need arises.

So, we need in pre-litigation to have the same proof mindset that we have in litigation.

In a trial, we need to prove two things, and then we need to prove a connector.

First, we need to prove that the accident or incident was the defendant’s fault. We must prove that the defendant is the only person who is responsible for the accident. This is called liability. We must prove the defendant is liable.

Second, we must prove damages. We must prove there were authentic medical bills, lost wages, pain, suffering or any other damages that apply.

Then we must prove the connector. We must prove that it was the accident that caused the damages. The defense may claim that the injuries you suffered came from an earlier accident or incident. We have to prove that the accident, and only the accident, caused the damages we are claiming.

Knowing these elements, we in pre-litigation prepare our cases to prove the exact same elements to the insurance companies with whom we are negotiating. The insurance companies must know that if they refuse to settle with us, we already have the proof we need to be successful in trial.

And that is what makes us always prepared to represent each and every client we have at Bailey & Galyen.

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The Do’€™s and Don’ts of an Accident


If you are ever involved in an accident, there are certain things you should absolutely do, and some things you should absolutely not do. These things are extremely important, not just for your well-being, but also to help you should a claim need to be filed, regardless of the type of accident.

The DOs

DO seek medical attention immediately if you need it. This is the most important thing.

DO call the police. It is critical to get a police report.

DO get the names, addresses, phone numbers, insurance information and license plate numbers of every party involved in the accident.

DO get the name and address of the animal’™s owner and any license information if you were injured by an animal bite or attack. Also, make sure to note the breed of animal and take pictures of the animal if possible.

DO get the names, addresses and phone numbers of every witness to the accident.

DO contact your own insurance company. That could include your auto insurance, your medical insurance or even, in some situations, your homeowner’™s insurance.

DO take photographs of the accident. If it is an auto accident, take pictures of the vehicles and any visible injuries. If it is a slip and fall, take pictures of whatever caused the slip. If it is a dog bite, take pictures of the dog, the injuries and the area.

DO take detailed notes of what happened. Make sure you include every thought, feeling and impression you have. Include what you saw, heard, felt, smelled and experienced. Make notes of what happened before, during and after the accident.

DO contact Bailey & Galyen.

The DON’Ts

DON’T move your vehicle after an automobile accident unless necessary for safety or required by law. Many cities now require that you move your vehicle from a roadway if possible.

DON’T leave the scene of an accident until the police tell you it is okay to do so.

DON’T dispose of anything that might be evidence. This evidence could include car parts, bloodstained clothes or anything else that might help an investigator. It is better to collect more than you need and not use it than to not have something that would help your claim.

DON’T engage in discussions as to fault with anyone, and make sure you don’t apologize for anything it can be considered evidence that you were legally at fault.

DON’T agree to settlement terms without contacting your attorney.

If you follow this simple list of Do’s and Don’™ts, you will be better able to help us, your attorneys, when you are ready to file your claim.

And, as always, if in doubt, call us.

The New Battlefront


At Bailey and Galyen, we are keenly aware of how the legal landscape changes. Through the years, we have always stayed one step ahead of those changes, and we have adapted to meet the challenges as they arise to better serve our clients.

Recently, several of the major insurance companies have declared war on YOU, the injured victim. All of these companies with their cute television ads and promises to be there for you actually don’t care about you at all.

The new tactic these companies use is to seriously undercut what you deserve for your accident, especially when your medical bills are less than $6,000. They hope that if they offer you thousands less than what your case is worth, you will drop your case. They also hope that your attorney will choose not to pursue further legal action in those cases. Their goal is to chase you, the victim, away and force law firms out of business.

But at Bailey and Galyen, we do not run. We fight.

Bailey and Galyen has always had a litigation department. And Bailey and Galyen’™s litigation department will continue to be the finest litigation department in the state.

But to combat the new insurance company tactic, Bailey and Galyen now, in addition to its litigation department, will have a small claims department. This department will fight the litigation battles for those cases in which the medical bills are $6,000 and under. Where other firms might withdraw from those cases, B&G simply sees this as another way to fight for YOU.

And that is what Bailey and Galyen is all about.