QuestionQUESTION: Hi. I have case, which an attorney is handling. I have provided all of the information concerning my treatment, etc., The atty had to obtain very little herself. I retained this Lawyer in the beginning of May, 2014. We have gone through the usual. The other side has been leaving huge gaps in time between doing anything. I had to travel over three hours and stay overnight in order to attend an deposition in Sept, of this year. The opposing atty was rude and kept asking about my children and grand children, mostly things that have nothing to do with anything. He just seemed to be trying to make me angry. Then In December, he decides that he wants to have a mediation. I asked why, but have not received an response. I feel that this atty is deliberately procrastinating . They gave me several dates for this mediation, beginning with January 19th, then thru Feb, and March. I reluctantly agree to Jan 19th, now they say Feb 19th is the only available date. This should be settled by now. I have never seen a case take this long. Why would you go to mediation a month before the court date. The accident was a rear end collision, where I was sitting at a red light and was struck by an uninsured driver, so the case is against my own insurance company. I feel that a mediation is just another ploy, and i should have a case against the insurance company for dealing in bad faith. I would greatly appreciate your response. Thank You
ANSWER: I'm sorry for the delayed response. Unfortunately, it is your policy that governs this issue and without having a copy of it, it is going to be very hard for me to point you to the right answers. If you have an attorney, they should definitely be explaining how this works to you. Here's some info that might help you understand. . .
1. Your policy governs these negotiations. If it says you must mediate, then you must, if it is silent on the subject, then it is up to common law, the court, and the parties to work through the case using the rules of procedure and evidence that govern the court and contract law. I suggest you become familiar with all that is governing you in this case (your policy and what are the applicable laws, ask your attorney).
2. I have to point to your attorney again. She should be explaining how this works to you and helping you to understand any applicable law. An attorney is there to counsel you, not to handle everything for you, but most people don't think of it that way. Start thinking of it that way and handle your own case, attorney or not. As an example, you could refuse mediation and make the attorneys show you the law that requires you submit to a mediation, and so forth. . .
Although I am limited in what I can do to help you since I am not an attorney, I hope this puts you on the right path. Don't let them run the show, step into the mix and get really involved in deciding what happens next. If you don't like your attorney, fire her.
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QUESTION: You do not feel that asking for mediation, when this should have been settled by now, points to dealing in bad faith (Ohio Law) As for the mediation part, unknown, the insurance produced a updated copy of the policy after trying for a year to get it, and when I did, it included an item which was added within two months of the policy being forwarded, meaning not the policy in effect at the time of the accident.
They used the new version to get out of paying a claim for a person who was riding in the vehicle at the time of the accident.d
ANSWER: Bad Faith means not considering the policyholder's interest with the same weight as the company's interest. Just because they have asked for a meditation and the claim has still not settled is not an indicator that they are acting in bad faith (unless there is a policy provision that says mediation must be requested within such and such many days or something). There is also some things like waiver and estoppel that could come into play, but that requires a legal analysis and copy of the governing policy. If the governing policy cannot even be agreed upon, then that is where the energy should be focused first.
If you don't have a copy of the policy that you claim is the right one, then you are at the mercy of the carrier and the disclosure and production process of discovery. Can you prove you made a written request for a copy of your policy and didn't get it for a year? It's the old problem of "it's not what you know, but what you can prove. . ".
If one policy covered the loss (and you can produce a copy of that policy), and the "new" policy would not cover it, and you can prove they changed the policy after the loss occurred, then you would have a good potential case of material misrepresentation, deceptive trade practices, and bad faith.
I hope that makes sense. I still think you need to put it to your attorney, these are things they should be addressing for you.
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QUESTION: The issue of bad faith concerns the entire time, and the items stated in the first question. The request for the mediation is one month before the case is scheduled for trial. They have been sitting on this since May 2014, this is December 2015. My lawyer has tried to settle, he will not. I can "prove" that they have had all that they need to make their decision, including Over $170,000 in medical bills. I have knowledge of several other cases in Ohio. basically it takes a year. In my case, there is no question of facts. I was not at fault,I have massive medical bills, injuries which will last my lifetime, loss of quality of life. loss of ability to work, limits on my abilities. The insurance policy would simply determine weather mediation is required or not. I have tried to get help here, because I am getting extremely irritated. My life, as has already fallen apart, I do not think that I should have to put up with this crap. Did I mention the accident was in 2012.
AnswerI am telling you that you have a contract dispute. Who was at fault is irrelevant. If you are dealing with another person's insurance company, bad faith is even harder to prove because it would then be third party bad faith, which is almost a conundrum. If your insurance company breached the contract, and they did so maliciously or with the intent to delay or unfairly deny your claim, THEN you have a bad faith case. I am an expert witness on a bad faith case right now where the ATTORNEY has hired me to review the case file and facts. There is no way for me to give you an answer or guide you without a huge amount of information. This is a complex area of law, and although I understand it is very frustrating for you, there is nothing you have provided me that says you have a good bad faith claim. I would have to see the policy and read all the notes from the first notice of loss. THEN, and only then could I tell you whether or not your attorney (you) has some course of action which will prompt a faster settlement or way out of mediation.
I am happy to discuss this with your attorney if they so desire. I'm easy to find. My direct number is 214-220-9144. Since you are attorney represented, I need to make sure you understand that I am simply providing you with the best answers I can to direct questions, and if I were involved in the claim officially as an expert, I could not discuss with you. Technically, you are not supposed to discuss the claim with anybody outside your attorney, either, just sayin.
Justin
