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ScottGem · Jan 27, 2013, 07:04 AM

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.

Fr_Chuck · Jan 27, 2013, 07:20 AM

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)

AK lawyer · Jan 27, 2013, 07:38 AM

Originally Posted by ScottGem

... 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.

J_9 · Jan 27, 2013, 07:43 AM

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.

AK lawyer · Jan 27, 2013, 07:47 AM

Originally Posted by J_9

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.

J_9 · Jan 27, 2013, 07:54 AM

I see your point.

Fr_Chuck · Jan 27, 2013, 07:59 AM

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.

J_9 · Jan 27, 2013, 08:03 AM

But wouldn't they sue jointly and severally?

joypulv · Jan 27, 2013, 08:18 AM

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?

Fr_Chuck · Jan 27, 2013, 08:35 AM

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

ScottGem · Jan 27, 2013, 08:39 AM

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.

AK lawyer · Jan 27, 2013, 03:29 PM

Originally Posted by Fr_Chuck

... 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).

AK lawyer · Jan 27, 2013, 03:33 PM

Originally Posted by joypulv

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.

ScottGem · Jan 27, 2013, 05:20 PM

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.

samcreed · Jan 28, 2013, 09:31 AM

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.

ScottGem · Jan 28, 2013, 10:27 AM

Originally Posted by samcreed

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.

AK lawyer · Jan 28, 2013, 05:19 PM

Originally Posted by ScottGem

...
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.

ScottGem · Jan 28, 2013, 06:14 PM

"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?

JudyKayTee · Feb 1, 2013, 08:28 AM

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?

JudyKayTee · Feb 1, 2013, 09:34 AM

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.