[ScottGem]

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).

[JudyKayTee]

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?

[ScottGem]

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.

[AK lawyer]

"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.

[JudyKayTee]

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?

[ScottGem]

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.

[JudyKayTee]

Scott, it's boilerplate.

[AK lawyer]

...
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. :)

[ScottGem]

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.

[JudyKayTee]

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.