Towing/collison at fault

These comments are made for educational purposes only and do not constitute legal advice. No attorney-client relationship exists between us.

The towing company has insurance for the damage they did to your car. You can and should make a claim for your damage and I recommend that you get an attorney to help you.

You could try to represent yourself in small claims court, but I would not recommend it.

If the towing company is an incorporated business, then it is required by Texas law to be represented by a lawyer -- it can't appear in court just through its individual owners. And if, as Ms. Trevino correctly suggests, it has insurance, the insurance company is likely to hire a lawyer to represent it even in small claims court.

Both the causation (wreck vs. towing) and dollar-value of your damages are going to require proof through an "expert witness," which is to say, a mechanic of some sort. ("Expert" doesn't mean PhD credentials, but it does mean someone who figures out and fixes car problems for a living, with the appropriate skill-set to permit him/her to give opinion testimony on things like what caused the problem and how much it will cost to fix it.) While many non-lawyers are perfectly capable of explaining their story to a Justice of the Peace in small claims court even with a lawyer on the other side trying to make objections and then cross-examine, dealing with an expert witness is quite a bit more complicated.

Moreover, you may not want to be in small claims court at all on a case like this one. The losing side can appeal any small claims court decision to County Civil Court at Law in Harris County, and the proceedings essentially start all over; nothing that happened in the small claims court matters, and the county court gives both sides a "trial de novo." Filing in small claims court on this kind of case, then, may mean that the insurance company can effectively require you to prove up your claim in court twice (meaning arranging for the appearance of, and paying, an expert witness twice). If you have a lawyer yourself, you're probably better off filing in Harris County Civil Court at Law to begin with, or perhaps in Harris County District Court.

In addition to arguing that the towing company was negligent (by failing to use the due care that a reasonable towing company would have used under the same circumstances), a lawyer may also be able to help you frame your complaint to fit under the Texas Deceptive Trade Practices-Consumer Protection Act, which in some circumstances might allow you to recover damages for "mental anguish" (aggravation) and attorneys' fees in addition to the cost of repairs and temporary loss of use of your vehicle (typically represented by rental-car expenses while yours was being fixed). The towing company probably made you an implied warranty of good and workmanlike performance in connection with its services, which the improper towing probably breached, and it may have made you other express promises, the violation of which also may have violated the Act.

You don't need the world's best or most experienced lawyer to present this kind of claim for you. It sounds pretty straight-forward. And if the claim is presented effectively in the initial demand letter on your behalf, it's quite possible that the case will settle even before suit is filed. But you are likely to have to agree to give up something like a third of your total recovery, if any, to pay a lawyer on a contingent fee basis if you do decide to hire one. Still, my guess is that a lawyer can help you get enough more from the towing company's insurer to more than make up for his/her fee.