QuestionI had an attorney who had me sign a general release waiver of the tortfeasor in order to receive his liability policy limits (with the consent of my insurer) and for me to go forward with collection against my own UIM coverage. The total limit of my underinsured policy is insufficient to meet medical damages sustained. I do live in a Stacked Policy State (Texas Statute 1952)and have Collision in addition to UM/UIM. My question is can I collect on both my UIM and Collision? If these combined policies are still insufficient to meet damage claim then can I go back to tortfeasor policy and collect on his underinsured policy? By the way the attorney had to be let go for lack of even the most basic due diligence in handling the case...
AnswerHi Rick,
Make me a rich man: pay me $1,000 for every complaint I have heard about poor performance by personal injury claims attorneys. It seems that there is no real objective standard that would apply to prohibit advertising unless one had some proven expertise in that area of the law. Hence, you get some doofus such as this for an attorney.
I am going to give you some answers to your questions, BUT I am ALSO going to give you some information to help you go after the attorney for rebate of some of the fees he took.
Let's first deal with the substantive issues you raised. If you and the tortfeasor had the same limits, and you are told that as a consequence you cannot make a UIM claim, then here are some comments on your question regarding stacking your Collision coverage.
First off, Collision coverage pertains solely to property damage: it has nothing whatsoever to do with bodily injury claims. Second, I am guessing that you meant to ask if you could stack your Bodily Injury Liability coverage. THAT is also NOT possible. Liability coverage applies solely to injuries sustained by others when you are at fault.
In fact, what stacking refers to is when you may have two separate policies from the same company. In THAT case, stacking is allowed.
So, in short conclusion, I have answered your question in the negative.
Now, Rick, for extra credit, I am going to give you some homework on other ways you may be able to recover $$ that your attorney did not get for you.
FIRST AND FOREMOST, did he exhaust all insurance coverage, all the assets of the tortfeasor, and did he claim versus all possible tortfeasors.
Additional tortfeasors could be the city for highway design or lighting that made the tortfeasor more likely to hit you, or which make it so you could not respond quickly enuf to avoid the accident. :Letting vegetation grow into the right of way can block the view of drivers, so the property owner is another possible tortfeasor.
Was it malpractice for the attorney to push you into taking the tortfeasor's limits if: (1) your injuries were worth A LOT more than the limits; and (2) the tortfeasor has some assets that you can seize and sell, or wages you can garnish?
If you and the tortfeasor have $25K limits, but your claim is worth $100K, why in the world would you settle for his limits if there is any possible way to collect versus his assets? Maybe your attorney guessed from the vehicle he was driving, his work, and where he lived, that the tortfeasor did not have any assets that could be reached. In the example I gave above, I would insist upon a SWORN statement as to the assets of the tortfeasor before I agreed to let my client thake take his limits. Once you accept those limits, there is nothing else that you can do against the tortfeasor. He is out of the picture. And by the way, HIS UIM covers HIM and HIS passengers, NOT the victims of his negligence—those are covered by his BI limits.
The key to going after assets is to remember that the tortfeasor will be able to discharge your judgment in bankruptcy, UNLESS he was committing a crime when he injured you (DUI is a criminal offense—driving offenses such as negligent driving are not).
So one would look to see how much he has in assets and what he will get to keep via your state's laws that protect a minimal amount of property from execution. This varies among states, but the judgment debtor does get to keep some assets as exemptions.
The next topic for your attorney to have solved for you is to defend against subrogation. Did you get all of your medical lien bills waived, or did your attorney just go and let them subrogate against you? Insurance company subrogation http://www.settlementcentral.com/page0459.htm vs. your bodily injury insurance policy limits settlement.
So, in the case I suggested above, let's say that your medical expenses were $10K, and they were paid by your auto insurance PIP or Med/Pay. Now your own insurer wants to subrogate versus your award. If your attorney fought for you, then you would defend the subro claim and keep the entire policy limit of $25K (less attorney fees and costs). If your attorney did not fight for you, he allowed the subrogation claim to be paid, thus diminishing what you got in the end.
Does this make sense, Rick?
Finally, we come to the issue of your attorney and whether or not he should have taken his fees as he did. Two things come to mind here. First is malpractice. Did he overlook any of the steps I mentioned above?
Next is excessive fees. If you truly had a claim that was valued FAR in excess of the state minimal policy limits, then the attorney should have known that at the time of contracting and he should have made his fee much lighter if the tortfeasor had only minimal limits. Think about it: how much hard work would he have to do in order to get a $25k policy limits offer if the value of your claim exceeded $50K. A blind dog with a note in its mouth could get that kind of offer.
Hence, we come to your State Bar Association http://www.settlementcentral.com/links.php
Get a hold of them and ask for a copy of their Rule RPC 1.5. It is a common practice for attorneys to hide the defendant's policy limits from their client whilst they do all kinds of work, hoping that the client will think that their efforts were necessary to make a recovery. THAT IS NOT TRUE in many policy limits cases.
Your state bar association http://www.settlementcentral.com/links.php will NOT PERMIT A FULL FEE in such a case. The bar has issued Rules for Professional Conduct and RPC 1.5 governs attorney fees and IT TRUMPS YOUR ATTORNEY'S CONTRACT.
TO ACHIEVE A FAIR AND REASONABLE PERSONAL INJURY ATTORNEY FEE, LEARN AND CITE your State Rules of Professional Conduct REGARDING REASONABLE LEGAL FEES. Your State Bar Association http://www.settlementcentral.com/links.php can help you with this, and I would not hesitate to contact them ASAP.
NO MATTER WHAT YOUR FEE AGREEMENT SAYS, YOUR STATE BAR ASSOCIATION IS NOT GOING TO LET YOUR ATTORNEY ABUSE YOU BY TAKING A FEE HIGHLY DISPROPORTIONATE TO THE WORK INVOLVED!
Here is the guidance direct from the site of the Washington State Bar Association, one of the leading institutions of its kind in the nation. www.wsba.org. This is for illustrative purposes, but your Texas State Bar Association will likely have the same or similar content.
Factors in Determining Reasonable Legal Fees (NOTE, MY COMMENTS WILL BE IN CAPS FOLLOWING CERTAIN FACTORS)
There are a number of factors involved in establishing a reasonable legal fee according to the Rules of Professional Conduct for lawyers. They include:
1. the time and labor required, (HOW MANY HOURS SHOULD IT HAVE TAKEN TO DO WHATEVER IT IS HE DID?)
2. the novelty and difficulty of the questions involved, (SIMPLE TASKS HERE?)
3. the skill required to perform the legal service, (MINIMAL?)
4. the terms of any fee agreement between the lawyer and the client,
5. the fee customarily charged locally for similar legal services,
6. the likelihood, if clear to the client, that the acceptance of the particular employment will preclude the lawyer from accepting other employment;
7. the amount involved and the results obtained, (COULD THE SAME RESULTS HAVE BEEN "ACHIEVED" BY A BLIND DOG WITH A DEMAND LETTER IN HIS MOUTH?)
8. the time limitations imposed by the client or the circumstances;
9. the nature and length of the professional relationship with the client;
10. the experience, reputation, and ability of the lawyer, and
11. whether the fee agreement or any confirming writing demonstrates that the client received a reasonable and fair disclosure of material elements of the fee agreement and the lawyer's billing practices.
These, or very similar rules have been adopted by your own Texas State Supreme Court, and your own State Bar Association does a service to the public by providing both access to the rules AND two forums for clients to enforce them versus their attorneys regarding fee disputes.
Note that this is NOT just something that the attorney may or may not agree with: HE IS DUTY-BOUND TO COMPLY WITH THESE RULES. The preamble to the rules states as follows:
”The Rules of Professional Conduct are MANDATORY in character. The rules state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action."
OK, Rick, I have made a lot more work for you than you asked about, but 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
