QuestionDear Doctor Settlement,
I have a claim in Los Angeles with a subdivision of Setry Insurance. They acknowledged full responsibility. They already paid property damage settlement for totaled car and offered very minimal personal injury settlement that didn't even cover medical expenses. I have been receiving treatment for two years and was not going to settle until I was aware of prognosis. I filed unlimited civil case. Insurance adjuster stated there was no need to serve defendant but my rights have been preserved since I filed within the statute of limitations. I assumed I did not have to serve and the insurance and I would continue negotiations. I have just submitted a full formal settlement demand letter with medical documentation, etc. However, the 60 days to serve was nearing. I decided to serve just in case. I attempted by mail and hired a process server. The defendant has moved within the last 10 days and is "unable to serve". My 60 days expire, of all days, in a few days time on July 4th, 2010. However, being a holiday and Sunday, I would need to file "proof of service" by Friday, July 2nd. I'm hoping to file by fax and request and an extension to serve. Is this possible? How do I go about it? What do I need to include?
I understand its unlikely to be extended but I want to try.
If I don't get an extension or file anything further, how long before my case is dismissed? Do I still have time to reach a settlement with the adjuster? Or are all of my rights and any settlement lost?
Hope the background and question make sense.
I have also sent a similar question to Mr. Hixenburgh claims expert on this site to get a perspective from the adjuster's side.
Please advise as soon as possible.
Thank you!
Julie
AnswerHello for the third time, Julie,
As I promised, I did go to the state and local procedural rules to see what I could suggest on the suggestion that you can delay your filing beyond the three years.
Because there is a mish-mash of procedures among state and county (local) rules, I am not comfortable in binding myself or allexperts.com to any advice that you have legal authority beyond the three years, OTHER than as I suggested in my first answer. The solution has to be as you did: make inquiry of those who live and work in the state.
I would still call on a live attorney. FYI, here is the name of one who has at least written about the statute of limitations, although he did not get into the topics of interest to you and me. http://www.expertlaw.com/library/limitations_by_state/California.html
Law Offices of Aaron Larson
If there is a court holiday on Monday, then you have another day. Also, why not get someone knowledgeable to start the DMV service. THAT can easily be done in one day if you have a person who knows what she is doing.
DO NOT GIVE UP. You are persistent, so keep on with your quest and get this thing served. BTW, ALSO take another look at my website for an idea of how to keep the file in your adjuster's office instead of transferring to the attorney. http://www.settlementcentral.com/page0452.htm
HA, maybe you are thinking that it would be GOOD to get the file to someone who will take another look at the value! So maybe it is good to get the attorney involved. Just be aware that once you get the attorney involved, she will AUTOMATICALLY send you a big set of interrogatories and set your deposition.
DO NOT SHRINK from these things if you have come this far, Julie. Just answer the Interrogatories honestly and same for the deposition.
Here is some info on discovery, interrogatories and depositions.
DISCOVERY IN GENERAL
http://www.davidjreed.com/Litigation/Discovery/discovery.htm
INTERROGATORIES
http://www.davidjreed.com/Litigation/Discovery/Interrogatories.htm
DEPOSITIONS IN GENERAL
http://www.davidjreed.com/Litigation/Discovery/depositions.htm
SAMPLE INTERROGATORIES FOR YOU TO SERVE
http://www.millerandzois.com/Sample-Interrogatories.html
Good Luck to you, Julie,
Dr. Settlement, J.D. (Juris Doctor)
Www.SettlementCentral.Com
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Hi Julie,
I will not scold you because what you need right now is IMMEDIATE HELP. I am going to give you a full hour of my time because you are in serious trouble right now, and we need to get you going on solving these problems.
In the first place, as you implied, you must serve your lawsuit within a specified number of days following the day it was filed. If you should fail to accomplish that service, then the filing will not toll the statute of limitations.
Some of what you have to do now is going to take some cash: BORROW $$ if need be: make an agreed lien versus your award if need be. You need to start on this today, without fail. Here are the four options I see that you have, none of which are very good right now. Do NOT take these on one at a time. Do them all simultaneously. Get the process server working ASAP and at the same time start calling attorney offices.
FIRST, try to resolve the lawsuit at the same time you are trying to get it served. Let the adjuster know that you have filed the lawsuit. Do NOT wait to get it served, but do both simultaneously. There will be no time left if you were to wait until the statute runs.
SECOND, find out WHEN the statute actually runs. You must have some attorney who can tell you this. The rule usually is that if a day to perform a duty falls on a Sunday, or Holiday, then the next business day is the day one can do the duty. So in this case it would be on the 5th, unless that is a court holiday, in which case it would be the 6th. BUT THIS MAY NOT BE THE RULE IN YOUR STATE—SO YOU MUST VERIFY.
THIRD, you MUST ASAP get a professional process server to attempt service. It is likely that the tortfeasor can be found by a professional, and you will have to offer a bonus cash fee to locate them and to serve them over the holiday weekend. If they cannot be found, then the process server must return an affidavit if not found, and hopefully it will contain info that no one knows where they moved to. This will support the use of substituted service.
FOURTH, try to get an attorney to serve via substituted service. Below are links on standard means of substituted service. ALSO consider asking about case law that says if a person cannot be found within the state, and it appears that they have fled the state, then they can be sued under the state's non-resident motorist law. In most states that would be to serve the Department of Motor Vehicles (or State Secretary of State in some states) or other official designated to accept service of non-resident motorists. Your state may or may not have case law (or a statute) that provides for such service when someone cannot be found.
You MUST offer two things to the attorney to have this substituted service done NOW. First is a blanket exemption from any malpractice claim in the event the attorney screws up. This is a ripe area for malpractice errors. Second is a high cash fee for the substituted service. Attorneys are not fast food joints, and they do not cater to people who want to bring them a bomb with the fuse lit and ask for help. Think about it—WHY would anyone want to drop all the work of established clients to defuse a lit bomb that exists only because of the person neglected her rights? You will have to find some attorney who needs the cash to do this for you. And you will have to have cash in hand—probably $400 minimum to get this served ASAP.
DO NOT GIVE UP IF YOU CANNOT SERVE THE CASE.
If you are unable to get this service issue resolved, then you will have to try to wing it on the "extension" you allege she gave to you. I do not suppose that she gave this to you in writing? Just try to settle and she will likely do so if she in fact mentioned an extension and if in fact your demands are well within her policy limits.
"They already paid property damage settlement for totaled car and offered very minimal personal injury settlement that didn't even cover medical expenses. I have been receiving treatment for two years and was not going to settle until I was aware of prognosis. I filed unlimited civil case. Insurance adjuster stated there was no need to serve defendant but my rights have been preserved since I filed within the statute of limitations."
DR. SETTLEMENT COMMENT: you can use her words to try to bind her. MAKE A WRITTEN MEMO to yourself regarding that entire conversation. Go ahead and back-date it. If challenged, you can whip out that MEMO and show it to the adjuster. Tell her that if she tries to go back on her word, you will bring a complaint with the state insurance commissioner http://www.settlementcentral.com/links.php And this does have some whiff of truth about it since all you were waiting for was the prognosis. She probably sees your claim as not too high in value and settling well within her policy limits. Hence, she may very well offer no resistance to making a reasonable settlement even after the statute runs.
"If I don't get an extension or file anything further, how long before my case is dismissed?"
DR. SETTLEMENT COMMENT: your case is never "dismissed" per se until one of three things happens. (1) the insurance company learns that you have made a public record of a lawsuit versus their insured, and they ask you to dismiss it voluntarily—which you MUST DO, OR FACE THE CONSEQUENCES OF ABUSE OF PROCESS; or (2) you try to set it for trial, in which case the insurance company will hire an attorney to dismiss it; or (3) if neither of the above happen, and it just sits there for a year on the clerk's docket, the clerk, of his own motion will seek to dismiss any claims that are not "active".
BTW, there is no legal "extension" of the statute of limitations that an adjuster can grant. She can only bind her company, NOT her insured. Here is a page on Directory of Legal Information on Statute of Limitations Information for Personal Injury Insurance Claims for Motor Vehicle Accidents, Dog Bites, Premises Liability, and Claims Against Governmental Entities http://www.settlementcentral.com/page0452.htm
That www.SettlementCentral.Com free accident information page has a ton of good info on the statute of limitations. One part of it deals with a question asked regarding an extension of the statute of limitations.
The insurance adjuster (or risk manager) likes me and understands that I still have medical problems. Why can't I just get her to agree to a 6 month extension of the statute of limitations?
Well, we bet she doesn't like you well enough to lose her job over her dealings with you! Yes, many times insurance adjusters do keep their word and honor a personal injury claim that is past the statute of limitations because they allowed the claimant to finish up some necessary part of the claim (for example, a surgery) that cannot be completed prior to the expiration of the statutory period.
But there are also a lot of instances where the insurance adjuster gave her assurance, and after the statute ran, the claimant submitted his claim (all as agreed), only to discover that the policy limits were the minimum allowed in that state, and thus the plaintiff was limited in her recovery. For example, let's say that you do have a serious personal injury claim worth over $70,000. But if the tortfeasor has only the state minimum $15,000 in policy limits, then that policy limit, no matter how inadequate to pay your damages, is all the insurance adjuster can secure for payment of your claim.
Absent unusual circumstances, you will not be allowed to sue the tortfeasor personally once the statute of limitations has expired, or, if you can, you will most likely be limited to a claim against the policy limits of the insurance policy. If those limits are insufficient to cover your personal injury damages, then you will forego any shot at that money in excess of his policy limits.
OK, Julie, GET GOING, NOW!! No moping about beating yourself up in a little pity party for being dumb or inattentive. EVERYONE maks mistakes, and there are hundreds of otherwise good competent attorneys who have committed malpractice on this very issue. Time flies and it just got away from you. BIG DEAL. You can make this thing work out, even if you have to take an afternoon off of work. Here is some background info I gathered for you, Julie.
http://www.courtinfo.ca.gov/selfhelp/smallclaims/serve.htm#substitutedservice
http://www.articlesfactory.com/articles/law/substituted-service-in-california.ht...
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=veh&group=17001-18000&file...
Office of the Director
Department of Motor Vehicles Attn: Legal Office, E-128
2415 First Ave.
Sacramento, CA 95818
I trust that my extra time here has produced some information that has been of value to you, and thus I would respectfully request that you take the time to locate the FEEDBACK FORM on this site and leave some feedback for me.
Best Wishes,
Dr. Settlement, J.D. (Juris Doctor)
http://www.SettlementCentral.Com
