Ok, I'm in a bit of a pickle here and I'm looking for suggestions on what might happen and what I have to do.

Three years ago my daughter was in an accident. She spun out on a highway ramp and ended up partially in the grass with the nose of the car pointing down the ramp but sticking out into the ramp. Another driver came along and hit her. She was ticketed for failure to control. She was under my insurance at the time. According to my daughter the other driver appeared to be all right and walking around after the accident. Airbags were not deployed and my daughters car was not severely damaged (Repairs were about $1500).

My insurer is handling this, but I just got an e-mail from them telling me that they have not been able to reach a settlement with the other driver and to contact them if I hear anything from the other driver.

I have 100k-300k liability coverage. So my question is what happens if this does go to trial and they are awarded something over the $300K. Is my house in jeopardy? I really don't have much in the way of assets besides my house and some retirement savings. Would I have to declare bankruptcy to protect these assets?

I'm not stressed by this but I'm not 100% sure what my options are and whether I should be doing anything more about this.

Yes, for example, I have a 500,000 dollar policy, but from a car wreck ( really bad) a few years back I was sued for about 1,000,000 dollars. We did settle out of court finally for about 450,000 but that was only because they worried about getting less in court.

But if they sue for more, you are expected to write them a check, if not they may get a judgement, garnish bank accounts, garnish your weekly paycheck, and put a lien on your home. Normally the lien only helps if you sell the home, but they can do that.

So yes basically you are at risk for anything higher.

Now just because they said they could not settle, it may be that they offered him 4000 and he wanted 10,000.
So if he sues for 10,000 and wins the insurance still pays.

But it is actually common for someone to be walking around the day of accident and not be able to hardly move and get out of bed the next. ( I was a perfect example of that myself)

... So my question is what happens if this does go to trial and they are awarded something over the $300K. Is my house in jeopardy? I really don't have much in the way of assets besides my house and some retirement savings. Would I have to declare bankruptcy to protect these assets?

I'm not stressed by this but I'm not 100% sure what my options are and whether I should be doing anything more about this.

As I'm sure you know, your insurance company is obligated to pay the cost of your attorneys to defend this claim. If the other party refuses to settle, and If they sue you and obtain a judgment in exceess of the policy limits, yes you would be liable for the amount the judgment exceeds the policy limits.

It's extremely unlikely to happen based upon what you have told us.

And keep in mind that a judgment against you would be based upon your negligence, not that of your daughter. So I don't see their suing, or getting a judgment against, you.

What you write about the e-mail from the insurance company suggests to me that the other party is blowing the whole thing off and perhaps will not sue at all. As I recall you are in NY. I don't recall off the top of my head what the negligence SOL is there, but that is the next thing to consider.

And keep in mind that a judgment against you would be based upon your negligence, not that of your daughter But the daughter was covered under Scott's policy. Has nothing to do with who is negligent since they are under the same policy.

But the daughter was covered under Scott's policy. Has nothing to do with who is negligent since they are under the same policy.

Incorrect. If they sue, they would have to sue her, for negligence. One cannot successfully sue a co-insured under some theory of imputed negligence. They could also, I suppose, sue him for something he supposedly did negligently (handing her the keys, knowing she was inebriated, for example) , but that's not likely to happen.

And even if they could, the insurance limits would, I suspect, cover his liabilty first, and then hers to the policy limits. I don't know how that works because it seldom happens. One would have to read the policy to check.

I see your point.

Hey Scott, did not even notice this was you asking, sorry about that.

I am assuming that the car is owned and/or registered in your name, Thus you have her on your insurance. Or she is a minor child where you are still liable for her debts.

But wouldn't they sue jointly and severally?

Wouldn't a next step be to ask your insurer what was the final amount they offered that was turned down? I wouldn't assume it to be the max coverage. And I'm wondering why (AK_lawyer) the other party is probably blowing this off?

I can remember the last time I was the injured party, I wanted about 15,000 and their best offer prior to the day of court was 3,000. So I sued, nothing till the day in court, their attorney wanted to see me in the back of the court room, he offered 5,000, I said no, he offered 10,000 I said no, he offered 12,000 ( I took it)
He had a 12,000 check with the paper work already written out in his briefcase.

No idea why they did not work harder to settle prior to court

First, this was her car registered in her name. At the time she purchased the car, she was living under my roof so I was able to add the car under my policy. She was 25 at the time and living on her own.

I'm really afraid to ask the insurance company for the details. I figure when and if it goes to trial I will find out. I did receive a similar e-mail from the insurer a while back and didn't hear from the plaintiff at all.

But the thought occurred to me that I should prepare if something more happens.

... Or she is a minor child where you are still liable for her debts.

Again, not quite accurate. Commercial debts, such as, for example a charge card, cannot be incurred by a minor unless an adult such as a parent has co-signed. What you mean here would be tort liability. Many states make a parent liable for torts committed by his or her minor child, but frequently only under certain circumstances, and/or up to a specified dollar limit (which would be much less than liability insurance policy limits).

Wouldn't a next step be to ask your insurer what was the final amount they offered that was turned down? I wouldn't assume it to be the max coverage. And I'm wondering why (AK_lawyer) the other party is probably blowing this off?

I'm guessing at this. But my educated guess is that the insurance company made a settlement offer and the injured party didn't respond. Doesn't mean they are dead set on going to trial for more. I'm simply guessing that it's no big deal to them and they are procrastinating about consulting with a lawyer.

Here is the text of the letter I received:

Our efforts to resolve {plaintiff's} injury claim were unsuccessful. As a result, you may receive legal documents from {plaintiff} or an attorney. If you do, contact me immediately at the number below so we can take appropriate actions to protect your interest.
If you have questions, please contact me at the number below. Please refer to our claim number when writing or calling about this claim.

In re-reading this, especially in light of AK's comments, I'm wondering if he's not right. As I said this is the second e-mail I've received like this. There has been no contact. Also, if she had an attorney, I might expect the claims adjuster to mention their name. But the phrase "or an attorney" is now making me wonder. Also the fact that he refers to a claim seems to indicate a suit hasn't been filed yet. This brings up an SOL question. Does the fact that she filed a claim stop the SOL or does she have to file suit. Now I got to go check the SOL on this.

I am glad you are not "stressed" by this... I would be!
You don't have a lawyer to talk with about this? I would get one, to at least, put my mind at ease.

I am glad you are not "stressed" by this.....I would be!
You don't have a lawyer to talk with about this? I would get one, to at least, put my mind at ease.

Why? The insurance company is providing legal representation. I know enough about the law to deal with them if I need to. For now I don't need to.

...
Also the fact that he refers to a claim seems to indicate a suit hasn't been filed yet. This brings up an SOL question. Does the fact that she filed a claim stop the SOL or does she have to file suit. Now I gotta go check the SOL on this.

If a lawsuit is filed, the first thing that will happen is that your daughter will be served. They would't serve the insurer, they would server her. She would be the named defendant.

And no, the other party to the accident making a claim with your insurance company definitely does not toll the SOL.

"toll the SOL"?? Unfamiliar term. Does that mean stop it?

My daughter has not been served and the 3 years expired on Sat. So are we safe?

Scott, I just saw this - we're both in NY and this is what I do for a living. I also remember this accident and our discussion at the time.

To set your mind at ease - no Court in NY is going to award damages above/over/beyond your insurance limits. It just doesn't happen. When a judgment over policy limits is handed down it is "always" (99.9%) reduced by the Judge. I see it all the time. I don't know if you remember my stepdaughter's accident. She was a passenger. Permanent damage to her shoulder. She settled for the policy - $20,000. There were no other avenues open to her and the driver of the car had a house and other assets. No one is going to touch your assets.

In a perfect world the owner and the operator of the vehicle are sued. Sometimes that's one person, sometimes not.

My gut instinct is that your insurance company and the other driver are far apart when it comes to settlement. A lawsuit is just a way to protect the other person's legal rights (statute and all of that) and to get the insurance company off dead center.

Of course your insurance company will represent you - you don't need a personal attorney.

So - you know I'm in the area. What do you need/want from me? How can I help?

Scott, I can't go back and edit (for some reason) so I'll PS -

How much of an investigation did the insurance company do? Weather conditions, other accidents, photos of the scene, witnesses? I can attempt a statement from the other party right up until a lawsuit is filed. If, of course, it's been filed I cannot.

Not too late for photos, pulling weather reports, talking to witnesses.

- as I said, whatever you need.

New development here. I was served last night. At the time of the accident, my daughter still had our address on her driver's license so that was the address the lawyer had. But the car is registered and titled in her name. Suit was filed just under the SOL.

The summons doesn't list an amount it just says that the amount of damages exceeds what is available in lower courts. Most of the summons appears to be boiler plate. To boil it down, the plaintiff is claiming permanent disability and the inability to perform her profession. My daughter is being blamed for negligence, recklessness and excessive speed.

However, there were no witnesses. I had originally thought she had been ticketed but I was wrong. Also no ambulances were called to the scene. The plaintiff apparently drove home on her own.

I have a call into the claims adjuster from my insurer and will have a few question for him to answer once I talk to him. I talked to my daughter earlier and she reminded me that the claims adjuster had told me that fault was set at 65/35 (my dtr was the 65).

I'm sure it's boilerplate. I'm also seeing paperwork all the time with no dollar amount. I still feel that this is a move to get the insurance company off dead center. I'm guessing that your insurance company was betting that the statute would run; the Plantiff's attorney made certain it did not.

If that is what the insurance company told your daughter I'm sure that's the dispute - percentages. Of course, if your daughter had been parked facing oncoming traffic, deliberately, the Plaintiff has no right to drive into her. She was expected to attempt to avoid the accident - and with weather the way it was (as I recall) she very possibly did. Of course, if she couldn't stop, neither could your daughter.

Again - anything you or your daughter need, including a shoulder, give me a call. If this gets to the sworn statement stage and she doesn't want to go alone, I'd go with her.

Too late now to try to contact the Plaintiff - did you find out if the insurance company did a thorough investigation?

OK, spoke to the adjuster. Plaintiff is asking for $100K, insurer is offering $15K. Plaintiff is claiming permanent disability and insurer has seen nothing in the medical info provided that supports permanent disability.

The adjuster told me that they will forward the summons to their legal dept who will assign an attorney to the case. I'll probably know more when the attorney has a chance to review it.

"toll the SOL" ??? Unfamiliar term. Does that mean stop it?

My daughter has not been served and the 3 years expired on Sat. So are we safe?

It means stop the clock from running. If it were about to expire, filing suit means that the plaintiff doesn't have to worry about the SOL.

When you posted on January 28th, she had not been served, but suit had been filed (just within the SOL), evidently.

I see from you later post that suit has been filed, you were not sued (You were not served, apparently, but she was at your home. Her lawyers could quibble about proper service, but it's not worth the effort in my opinion.), and no specified amount was demanded. If, as Judy-Kay-Tee advises, a judgment over the policy limits won't be awarded, you need no longer be concerned about your personal exposure (and, incidentally, your daughter's exposure as well).

I assume the plaintiff will claim that he/she had insufficient time to react after becoming aware that your daughter's car was sticking into the roadway. It seems to me that your daughter's attorneys can argue that this is another application of the idea that a rear-end collision is the fault of the driver in the rear.

I'm still wondering why they didn't ask for the $100K they wanted, before they filed suit.

I don't think "we" know that they didn't ask for 100K. Scott, did the insurance company give you any insight into demands, negotiations?

Again, this is a very common lawsuit. Argument will be whether both parties used diligent care given the road conditions - were the road conditions bad all over, just in that spot? Should either or both have been aware of the possibility of sliding, skidding.

I ask these questions many, many times a month. It's one thing if you're driving in a blizzard. It's quite another if you're driving along and, bam! White out!

The Daughter ("TD") had a responsibility to drive in a responsible fashion; so did the other driver. Just because TD was in the road doesn't mean the other driver didn't have to try to avoid her.

Everyone will allege whatever crosses their mind and then it will boil down to percentage of fault, proof of medical claims.

I both investigate claims and serve papers through my other "arm" and I am surprised that only TD was sued/served. The far more common approach is to sue both of you just in case there's some angle someone has overlooked. You can always drop a party. It's almost impossible to add a party.

Scott, I can almost guarantee that this will settle.

My gut feeling continues to be that the insurance company and Plaintiff are far apart and this is a step to protect her rights (before the SOL expires) and push the negotiations forward.

If you get a chance let me know who represents the Plaintiff and who is representing your company - I assume it's an assigned firm?

AK, Thanks for the clarification. I guess I assumed that if a suit was filed service would have been more immediate. But yes the SOL is no longer an issue. I also agree that arguing over service is a waste of time.

Judy, I don't want to post identifying info here. So I won't mention the plaintiff's attorney. The insurer will be letting my dtr know shortly who they will assign to represent her.

As I recall, the roads were totally snow covered and it was snowing at the time. But I have to confirm that. I believe the road conditions were such that even driving carefully could cause a spin out if an icy patch was hit just right and I believe that was what happened. I very seriously doubt they can prove recklessness and negligence by any stretch of the imagination. There were no witnesses and I doubt if there were skid marks that could prove anything since the road was snow covered.

The summons ends with;

WHEREFORE, the Plaintiff demands judgment against the Defendant for a sum which exceeds the jurisdictional limits of all lower Courts which would otherwise have jurisdiction and as may be awarded by the trier of facts herein on the First Cause of Action; together with the costs and disbursements of this action, and for such other and further relief as to this Court may seem just and proper.

I take that to mean, that this exceeds the limits of Small Claims courts so it was filed in the state's Supreme Court.

The adjuster told me they are asking for $100K and the insurer is offering $15K because, despite a great deal of medical info, they aren't convinced of the level of disability.

The summons site this clause in the state law:

Serious injury" means a personal injury which results in death;
dismemberment; significant disfigurement; a fracture; loss of a fetus;
permanent loss of use of a body organ, member, function or system;
permanent consequential limitation of use of a body organ or member;
significant limitation of use of a body function or system; or a
medically determined injury or impairment of a non-permanent nature
which prevents the injured person from performing substantially all of
the material acts which constitute such person's usual and customary
daily activities for not less than ninety days during the one hundred
eighty days immediately following the occurrence of the injury or
impairment.

So I'm interpreting this to mean that she could be all right now, but if she couldn't perform her normal activities for at least half of the 6 months following the accident she is entitled to sue for damages. Doesn't mean she is entitled to damages, just that she can sue.

So what I'm reading into this is that the Plaintiff's lawyer believes she was disabled during that time and my insurer doesn't.

Well since it appears that we have little if any personal exposure here, it should be interesting to see how this plays out. Since the two are so far apart, I would suspect that there may be a meeting point somewhere in between.

Scott, it's boilerplate.

...
So I'm interpreting this to mean that she could be all right now, but if she couldn't perform her normal activities for at least half of the 6 months following the accident she is entitled to sue for damages. ....

The applicable part of the definition is this:

"... Injury or impairment of a non-permanent nature
which prevents the injured person from performing substantially all of
The material acts which constitute such person's usual and customary
daily activities for not less than ninety days... "

In other words, she is alleging she was hurt, and it wasn't just a hangnail. As JudyKay Tee told you, it's boilerplate. :)

I understand its boilerplate. But my point is that under the law, she could be perfectly fine now. What matters is what her ability was during the first half of 2010. And that seems to be the issue the claims adjuster is dealing with. He apparently doesn't feel the medical reports prove her claim.

Scott, all the Plaintiff's
Attorney is doing is covering the bases. Better to allege everything and have some things thrown out than allege nothing (or too little) and lose the chance it might "fly."

And as far as her medical condition, that's for medical reports, Physicians, to determine. Whether your insurance company believes it is one thing; whether she can prove it is another.

Again, I think it's a bunch of posturing.