Ask Me Help Desk - Suing after an auto accident

I was found 0% at fault in an auto accident where an elderly woman ran a red totaled my car with my 3 year old inside, and fled until her car broke down a few blocks away. I spent 9 months in Physcial Therapy, 12 months seeing doctors for pain and 12 months in Therapy for emotional distress.

Both of our insurance companies are State Farm and I felt that I would get the short end of the stick due to conflict of interest, so I got a lawyer. It is now 2 years and 3 months later and I am in the process of suing her for medical expenses, lost wages and the lawyer's fees, which total $11,000. Small claims has a cap of $10,000, so I feel I am settling by going for that as it is.

Here's the tricky part. You can only file a lawsuit within 2 years of the incident. My lawsuit was filed within that period, but the defendant died before the court date. The case is me vs her. I want all $10,000 because this woman paid her insurance to cover this sort of thing and I feel I shouldn't be financially repsonsible for anything. That is what insurance is for!

State Farm offered me $4,100. I agreed to postpone the court date another month to think about it, but I'd be taking a huge loss for something that was absolutely none of my fault.

My question for this forum is: If I go back in front of the judge and ask for my entitled amount of $10,000, what is the probability of him sending me home with $0? State Farm has decided to attend court for the late defandant. If the judge sides with the little guy (me), is State Farm obligated to pay the whole amount or can they dispute it? Should I drop the whole thing and take the loss or is this a justifiable case?

Quote:

Originally Posted by OCBratt

I was found 0% at fault in an auto accident where an elderly woman ran a red totaled my car with my 3 year old inside, and fled until her car broke down a few blocks away. I spent 9 months in Physcial Therapy, 12 months seeing doctors for pain and 12 months in Therapy for emotional distress.

Both of our insurance companies are State Farm and I felt that I would get the short end of the stick due to conflict of interest, so I got a lawyer. It is now 2 years and 3 months later and I am in the process of suing her for medical expenses, lost wages and the lawyer's fees, which total $11,000. Small claims has a cap of $10,000, so I feel I am settling by going for that as it is.

Here's the tricky part. You can only file a lawsuit within 2 years of the incident. My lawsuit was filed within that period, but the defendant died before the court date. The case is me vs her. I want all $10,000 because this woman paid her insurance to cover this sort of thing and I feel I shouldn't be financially repsonsible for anything. That is what insurance is for!

State Farm offered me $4,100. I agreed to postpone the court date another month to think about it, but I'd be taking a huge loss for something that was absolutely none of my fault.

My question for this forum is: If I go back in front of the judge and ask for my entitled amount of $10,000, what is the probability of him sending me home with $0? State Farm has decided to attend court for the late defandant. If the judge sides with the little guy (me), is State Farm obligated to pay the whole amount or can they dispute it? Should I drop the whole thing and take the loss or is this a justifiable case?

I'm a liability investigator in NY. What State? Not NY if you have to sue to get your med bills paid.

Who found you 0% at fault? Not the insurance company I would guess. If so you would get what you could prove by means of damages. Next question - you had an Attorney, discharged the Attorney and proceeded on your own. Doesn't the Attorney have a lien against any settlement you obtain? I've never seen fees for a personal injury accident, although I know occasionally it's happened. It NY 99.9% of the time it's a contingency agreement - the Attorney gets betwee 33-1/3% and 40%.

In NY you would not get your legal fees and expenses because it was your decision to proceed on your own. How do I know? It happened to me. I thought the Attorney was dragging his feet so I sued for my bills (also an auto accident) and the Attorney's fee. I got the bills, not the Attorney's fee because I was (obviously) not happy with the work. I was told to sue the Attorney for a return of my money.

The woman's estate would be responsible for anything over the insurance. The policy that will pay is the policy she had at the time of her death (date of death). I can tell you in NY that the "emotional distress" very probably would be thrown out. Child care, tangible things, yes. Emotional distress, particularly in Small Claims Court? Probably not.

State Farm didn't DECIDE to attend on her behalf. State Farm insured her - they can either not show and your claim is uncontested OR they can show and argue their side of things.

Again - who said you were 0% at fault? State Farm? If so, what are they arguing? The AMOUNT of your bills? Something else?

What's the probability? No one knows. Get a Judge on a bad day - get a Judge on a good day. Every Court appearance is a flip of a coin. I've seen good people get bad decisions... and the other way around.

If they have made an offer what is their reason for the difference between the amount you are asking and the amount they are offering? Are they not considering emotional distress, something else? There has to be some reason they came up with that figure.

IF you have "uninsured/underinsured" coverage YOUR company would pick up after her policy limit is used IF you are awarded more than her coverage. I'm sure your Attorney told you that.

I don't know what your total expenses, the "value" of your injury is - but I think you have to sit down and think long and hard what it is you want and why you want it.

Do I think you'll get zeroed out? No. Do I think you'll get $4,000+. My guess would be that that's the cost of representing the other driver, the work that's already in the case, their time plus a little bit extra.

Do you know?

I am in California. State Farm and CHP found me 0% at fault.

The lawyer does have a contingency agreement for 33%, but lowered it to 25% when I proceeded on my own.

So, it's not the policy she had when she hit me, but the policy at date of death that counts?

State Farm isn't arguing yet. They said they didn't receive any bills from my lawyer - part of the reason I fired him - so I am hoping that providing my bills would bring their offer up. I went to court yesterday and gave the State Farm rep that attended a copy of all bills and pay stubs showing lost wages. She requested that I also obtain the doctors' medical records so that they can prove all of my expenses are accident related. This is going to be a great deal of work for me, which is why I was thinking I should just go to the next scheduled court date and try for the whole $10,000. I would be completely satisfied with that outcome, because I would walk away with around $7,000.

My bills include $2000 paid out of pocket, $2000 in lost wages, $5000 in medical either convered by my personal medical insurance or with a doctor seen on contingency. So, walking away with $7,000 would be awesome.

My State Farm local rep told me that they decide the offer by assessing the car's damage. Apparently, my car's damage was only worth $4,100 in medical bills. I don't think this method is fair because people can destroy a car and walk away unscathed or barely damage it and end up with severe whiplash.

Your input has really helped me. I appreciate your time and advice. I was considering a counter-offer of $8,000, with the stipulation that if they don't accept, I will return to the next small claims court date seeking the full $10,000. At this point, I'd honestly settle for $6,500 just to be rid of this nightmare. At least I would walk away with $4800 or so.

This is not how insurance works. In actuality, when both people are insured by the same carrier you are MORE likely to get fully reimbursed and it being done easily.

You should have simply submitted your bills as they came and you should have been reimbursed. If she had liability coverage it would have been a minimum $50K. More than enough to cover your medical bills.

By going to court you have cheated yourself. The time to go to court would be if and when state Farm refused to pay your medical bills.

And no, it's the policy in force at the time of the accident.

Quote:

Originally Posted by OCBratt

I am in California. State Farm and CHP found me 0% at fault.

The lawyer does have a contingency agreement for 33%, but lowered it to 25% when I proceeded on my own.

So, it's not the policy she had when she hit me, but the policy at date of death that counts?

State Farm isn't arguing yet. They said they didn't receive any bills from my lawyer - part of the reason I fired him - so I am hoping that providing my bills would bring their offer up. I went to court yesterday and gave the State Farm rep that attended a copy of all bills and pay stubs showing lost wages. She requested that I also obtain the doctors' medical records so that they can prove all of my expenses are accident related. This is going to be a great deal of work for me, which is why I was thinking I should just go to the next scheduled court date and try for the whole $10,000. I would be completely satisfied with that outcome, because I would walk away with around $7,000.

My bills include $2000 paid out of pocket, $2000 in lost wages, $5000 in medical either convered by my personal medical insurance or with a doctor seen on contingency. So, walking away with $7,000 would be awesome.

My State Farm local rep told me that they decide the offer by assessing the car's damage. Apparently, my car's damage was only worth $4,100 in medical bills. I don't think this method is fair because people can destroy a car and walk away unscathed or barely damage it and end up with severe whiplash.

Your input has really helped me. I appreciate your time and advice. I was considering a counter-offer of $8,000, with the stipulation that if they don't accept, I will return to the next small claims court date seeking the full $10,000. At this point, I'd honestly settle for $6,500 just to be rid of this nightmare. At least I would walk away with $4800 or so.

I'm not reading through what I said but if I said it's date of death coverage, I'm incorrect. It's the coverage at the time of the occurrence that matters.

I think your plan is sound - have a bottom line, that's what you stick with.

So they are arguing about the AMOUNT of the bills, nothing else. That's good.

What would I do? I wouldn't counter offer. It sounds like you've dropped to $10,000. I wouldn't drop beyond that.

A year (more or less) of inconvenience, medical appointments, therapy?

Plus your former Attorney comes off the top?

I'd stick with the $10,000. Dol I think you'll walk away empty handed? No.

Depends on whether you want to roll the dice.

Quote:

Originally Posted by OCBratt

... Both of our insurance companies are State Farm and I felt that I would get the short end of the stick due to conflict of interest, so I got a lawyer. ...

Did you not understand that the insurance company was required to pay for different lawyers for each of you?

Quote:

Originally Posted by OCBratt

I... I am in the process of suing her for medical expenses, lost wages and the lawyer's fees, which total $11,000. Small claims has a cap of $10,000, so ...

You don't get lawyer fees in small claims court. And the great majority of U.S. states go by the "American Rule" on attorney fees: you can't recover your attorney fees unless you are suing on a contract which gives you the right to sue for attorney fees.

Quote:

Originally Posted by OCBratt

... I am hoping that providing my bills would bring their offer up. I went to court yesterday and gave the State Farm rep that attended a copy of all bills and pay stubs showing lost wages. She requested that I also obtain the doctors' medical records so that they can prove all of my expenses are accident related. This is going to be a great deal of work for me, which is why I was thinking I should just go to the next scheduled court date and try for the whole $10,000. I would be completely satisfied with that outcome, because I would walk away with around $7,000.
...

You are not making a lot of sense here. You didn't want to bother to prove you medical expense to the State Farm rep. and figure you can just go to court instead? You will still have to prove the same thing in court if you hope to recover.

I "assumed" that OP realized there would have to be proof to back up any of the claims. Never assume.

In NY Small Claims if you retain an Attorney, decide to represent yourself and discharge the Attorney you CANNOT get the Attorney's legal fee in a Small Claims Action.

Quote:

Originally Posted by AK lawyer

Did you not understand that the insurance company was required to pay for different lawyers for each of you?

They did not get different lawyers for each party. State Farm assigned a Claim's Adjuster to each side.

You don't get lawyer fees in small claims court. And the great majority of U.S. states go by the "American Rule" on attorney fees: you can't recover your attorney fees unless you are suing on a contract which gives you the right to sue for attorney fees.

You are not making a lot of sense here. You didn't want to bother to prove you medical expense to the State Farm rep. and figure you can just go to court instead? You will still have to prove the same thing in court if you hope to recover.

I collected and submitted BILLS, now they want the entire medical file with doctor's notes. I have requested this from the doctors, but it has been over 2 years and I not getting responses.

Quote:

Originally Posted by OCBratt

I collected and submitted BILLS, now they want the entire medical file with doctor's notes. I have requested this from the doctors, but it has been over 2 years and I not getting responses.

Okay, the are trying to determine the extent of the injuries. This is not unusual - just the bills won't work.

Your hands are tied until you submit the medical info that the company wants. In MY area you sign the release of medical records for the insurance company and they obtain the records. Didn't your Attorney do that?

You have got to get medical records AS THEY PERTAIN TO THE ACCIDENT - NOT YOUR WHOLE LIFE - and you've got to get back in contact with the Doctors.

Quote:

Originally Posted by JudyKayTee

I "assumed" that OP realized there would have to be proof to back up any of the claims. Never assume.

In NY Small Claims if you retain an Attorney, decide to represent yourself and discharge the Attorney you CANNOT get the Attorney's legal fee in a Small Claims Action.

I am coming to terms with the fact that I will not get the attorney fees covered. That is my fault. If by proof, I do have all bills. They are requesting acutal notes and files from each of the 10 doctors.

Quote:

Originally Posted by OCBratt

I am coming to terms with the fact that I will not get the attorney fees covered. That is my fault. If by proof, I do have all bills. They are requesting acutal notes and files from each of the 10 doctors.

That's pretty standard. The insurance company is looking at the injuries, the extent of the injuries, the cause.

I know it sound bizarre when you're injured - but this is not uncommon.

Right as Judy stated, this is not uncommon. If you had simply filed a claim with State Farm, because both of you were insured by them, this would have been handled easily. You could have been submitting bills as you went along and had them reimbursed already. You would have authorized your doctors to provide info directly to them.

But because of your mistaken impression that there would be a conflict of interest, you have not only delayed your reimbursements but limited them and made of pocket expenses that will not be reimbursed.

I know this doesn't help you now. You will need to provide whatever information they ask for and wait until they get around to resolving the claims.

But I have posted this so maybe another member will learn and not make the mistakes you did.

Scott, you are absolutely correct. And this is site is a learning opportunity for all of us, not just those who ask the questions.
It would be great if folks would follow up and let us know how these issues came out in the end--that would multiply the value of this site tremendously. But I guess it is just human nature to not do that.

Quote:

Originally Posted by ScottGem

Right as Judy stated, this is not uncommon. If you had simply filed a claim with State Farm, because both of you were insured by them, this would have been handled easily. You could have been submitting bills as you went along and had them reimbursed already. You would have authorized your doctors to provide info directly to them.

But because of your mistaken impression that there would be a conflict of interest, you have not only delayed your reimbursements but limited them and made out of pocket expenses that will not be reimbursed.

I know this doesn't help you now. You will need to provide whatever information they ask for and wait until they get around to resolving the claims.

But I have posted this so maybe another member will learn and not make the mistakes you did.

Thank you. I wish I would have known better.

I will post the resolution as soon as I know.

Thank you all!!

Quote:

Originally Posted by OCBratt

I will post the resolution as soon as I know.

Thank you all!!!

Please let us know - I'm going to be very interested.