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Dear Customer, thank you for choosing Just Answer. I am sorry to learn of your unfortunate experience. To sue in Texas for any amount up to $10,000.00, you can sue in small claims court. Here is a comprehensive explanation and guide of how to file a claim and pursue a suit such as the one you are describing that was written by the Texas State Bar Association. It should cover everything you need to get you started (and hopefully through this matter - if you are unable to resolve this matter prior to trial). http://www.texasbar.com/Content/NavigationMenu/ForThePublic/FreeLegalInformation/OurLegalSystem/HowtoSueinSmallClaimsCourt.pdf
I hope the above is helpful, and I hope that you are able to resolve this matter quickly. Best regards, Bill.
Do I have a good chance of winning? Will the witness from the restaurant and the storage clerk be of any use? Also, what if the tow company chooses to settle with their insurance?
I am not allowed to tell you whether or not you have a chance of winning. Your case is a negligence case - whether or not a "reasonable and prudent tow company in the same or a similar position would have acted in the same way" I do not know whether or not the tow company will tender a case this small (relatively) to their carrier, but it is possible. (While I can't predict the outcomes of these things, these are some of the factors to consider in your case. But one thing is certain - you will not win if you do not file the claim.
Do you mean filing a claim with small claims, or filing a claim with insurance?
You cannot file a claim with their insurance company. You need to file a claim in small claims court against the tow truck company for their negligence (you are alleging that they acted below their "standard of care" by not towing your truck properly).
Once you file your lawsuit, the tow company has the option to "tender" the claim to their insurance company (file a claim), but only the tow company can do this - it is their policy. They can file a claim now, but that is their option - you can "trigger this" by writing a "pre-litigation demand letter" which threatens to file a lawsuit, demanding damages and attaching a copy of your proposed complaint (this works in some cases to get a settlement before having to actually file a lawsuit - but not always).
Do I need to have the mechanic write a statement of how the transfer case was damaged and what needs to be replaced/repaired?
He only wrote me up an estimate for a new transfer case
No, it will help, but it is not necessary - you will only need the rough number to file your suit - you will need the actual number or estimate once you get to trial. The statute of limitations for negligence is 2 years (this means you have 2 years from the time of the discovery of the act to file your lawsuit). This should give you plenty of time to get your damages set (you don't have to but it might help in your case) and get your demand together. You can easily make your "pre-litigation demand" before hand in order to have them pay for the repairs - but I don't know if they will do so or not.
I sent the demand letter last week and still no reply from the owner. I guess I will go ahead and file in small claims court. Thank you for your help!
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Best regards, XXXXX XXXXX you,
I found out yesterday through the Secretary of State records that the tow company has a "Forfeited existence" status since 2009. What does that mean for me? Can I still sue the company? I looked up that status and it states that a forfeited existence company cannot defend in court or sue. Would that mean they are automatically liable for my damages since they are not legal to operate as a business?
So on the small claims form, will I be listing the tow company as the defendant, or the registered agent (Karl Plehn)? There's a line for "Defendant:" and another for "Serve:"
Could I also add in the claim that I would like my towing fees refunded? Since they did tow it while on a forfeited existence.
You can ask for it. (This usually isn't a basis for fee waiver, but it is something you could reasonably ask for).
I had a question about an occupation code in the TX Dept of Licensing & Regulation in the Vehicle Towing & Booting section. Could you tell me a little more about the part that I bolded and underlined? I copied and pasted it. What does it mean that I am not required to prove negligence?
Sec. 2308.404. Civil Liability of Towing Company, Booting Company, or Parking Facility Owner for Violation of Chapter.
(a) A towing company, booting company, or parking facility owner who violates this chapter is liable to the owner or operator of the vehicle that is the subject of the violation for:
(1) damages arising from the removal, storage, or booting of the vehicle; and(2) towing, storage, or booting fees assessed in connection with the vehicle's removal, storage, or booting.
(1) damages arising from the removal, storage, or booting of the vehicle; and
(2) towing, storage, or booting fees assessed in connection with the vehicle's removal, storage, or booting.
(b) A vehicle's owner or operator is not required to prove negligence of a parking facility owner, towing company, or booting company to recover under Subsection (a).
(c) A towing company, booting company, or parking facility owner who intentionally, knowingly, or recklessly violates this chapter is liable to the owner or operator of the vehicle that is the subject of the violation for $1,000 plus three times the amount of fees assessed in the vehicle's removal, towing, storage, or booting.
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