QuestionQUESTION: My 18-year old son, was killed when a driver of a truck (the person at fault) made an illegal left turn in front of the motorcycle he was driving. During the 9+ months since the accident, I have contacted several attorneys for advice, but can’t seem to get any direct answers unless I contract with them. I am hoping that you can help with some of the questions I have, because the situation has become quite complicated (and that could possibly be the reason for the lack of answers).
My son has lived full-time with me since he was nine and was still living with me full-time when the accident occurred, but my ex-husband (I’ll refer to him as Scott) carried the insurance for the motorcycle on his policy. A few days after the accident, Scott went directly to an attorney he had used in the past and secured the attorney’s services. I talked to the Scott’s attorney over the phone and he stated that he could not represent me due to a “conflict of interest” in him representing Scott.
Without giving specifics, I have had significant problems with Scott in providing any financial support for our children for the past 10 years. I paid all mortuary, funeral, burial, and other direct expenses, as Scott stated that he had no money for this purpose. I also was the only one that had medical insurance that covered my son, which paid the hospital and doctor bills, after I signed a subrogation and assignment agreement with the health insurance company. I incurred direct expenses of approximately $31,000, and I also had to use a little over $30,000 from my time banks at work as a result of a medical/disability leave I was placed on by my doctor after the death of my son.
I had contacted the other person’s insurance several times regarding reimbursement, but the insurance rep stated that Scott’s attorney was being non-communicative and was not forthcoming with documentation. In trying to make this as brief as possible, Scott’s attorney finally sent me a draft settlement breakdown that would reimburse the $31,000 in direct costs (mine and the health care plan), but ignores the banked hours I was required to use by my employer during my leave of absence. I was told that this cost was left out because Scott sees the loss of my banked time as pain and suffering, rather than directly related to the accident. The total liability policy held by the at-fault driver was $50,000. Both Scott and his attorney also will receive a portion of the at-fault driver’s insurance.
In addition, Scott has a $100,000 UIM policy under which my son was insured for the motorcycle. Scott states that this is his insurance and he is the “only” beneficiary of that insurance. From researching sites over the last couple of days, I understand that policies are not stackable in CA and that the additional amount available from Scott’s insurance would be $50,000 (representing the amount in excess of the at-fault driver’s insurance).
I know this is getting lengthy, but I think I need to give you a few more specifics in this case before I ask my questions. The accident occurred in California, my son was pronounced dead at the hospital from traumatic injuries, my son had never been married and had no children. He is survived by 3 blood-related sisters. I also have auto insurance that covered my son’s car, but the uninsured (my policy does not show UIM) limits were uninsured motorist of $15,000 each person and bodily injury of $30,000 each accident. I would greatly appreciate your assistance in answering my questions below before I sign an agreement that seems to take away any other rights I may have.
1. Is it possible to get reimbursement for at least $5,000 in medical costs from the medical payment insurance that is listed on Scott’s policy that covered my son for the motorcycle, and is it possible to get an additional $5,000 reimbursement from my policy that covered my son for auto? Currently, proceeds from the at-fault driver’s insurance of $50,000 are covering this by paying the health insurance for their costs under the subrogation and assignment agreement.
2. What if my health insurance company continues to pay for emergency and doctor bills that might still be out there? I just discovered after receiving the draft settlement agreement from Scott’s attorney that my health insurance paid another bill within the last week that was not included in the settlement agreement. In addition, I know for certain that Scott and his attorney know there is an ambulance bill that they have not submitted to my health insurance and it is not included as part of the settlement to that agency. There are also deductibles and coinsurance that have not been paid at all. Do I become solely responsible for all these bills, deductibles, and coinsurance amounts due if I sign the settlement agreement?
3. Am I entitled to be reimbursed from the at-fault driver’s insurance (the $50K) for my banked time used during my leave of absence resulting from the death of my son, or is this just really “my own problem”?
4. What, if any, documentation did Scott’s attorney have to provide to the at-fault driver’s insurance company to get full payment of the $50,000 policy. Would he have had to submit medical bills and my receipts for mortuary, funeral, burial, and my other direct costs to get the full amount? I feel that he may have submitted my receipts to get full payment from the at-fault driver’s insurance, and that he will continue to use my receipts in excess of $50,000 to go after the UIM policy since Scott has paid nothing in any of this.
5. Who is considered a beneficiary of the UIM policy that covered my son? Just the named people on Scott’s policy? Or might it include family members with whom my son actually lived (myself) or his heirs (sisters)?
6. Is there any claim that I can file with my own auto policy - uninsured motorist coverage - that covered my son, even though he was driving a vehicle not covered by my insurance, and even though the limits are lesser than the at-fault driver’s?
ANSWER: Dear Stephanie,
Please accept my condolences on the death of your son. I cannot understand the full depth of your sorrow, no matter how much I try to place myself in your shoes. It is so very difficult to begin with, and much more so in light of the problems you discuss with respect to the legal aspects of the claim.
I wish I could eliminate some hurt in your gut—but not only am I unable to erase the past; I cannot even give you substantive help for your present situation. You could not get help from the attorneys you consulted because yours situation does involve a mixture of some separate disciplines within the law (survival statutes, wrongful death, intestate succession, probate, domestic relations, insurance contracts, tort law, etc.).
I am unable to give any substantive help to you in such state-specific areas of the law (unlike, for example, “rules of the road” or general insurance claims, where the law is pretty much settled and does not vary by state statute as much as in your case).
I have two choices:
#1. Decline your question (which is the common practice when experts are hit with something too much state-specific and with a lot of money at stake), in which case you would then be free to try any other expert for help; OR
#2. Get you some help from experts here at allexperts who should know the laws of your state, AND research and get you the names of two or three competent trial attorneys in your area.
I elected to go with number 2 because if I were to simply pass you off to some other expert, it is unlikely they would be able to give much in the way of substantive help since your requirements are so state-specific. Normally, when there is so much state-specific law and it is entangled in different areas like this, I would simply decline the question. But because you have already suffered so much, and because there is this hassle coming from your former husband, and since you have already exhausted your own resources in trying to get help, I am going to give you as much of my time as needed to get you some information and a means of getting good, competent legal help. OK?
The second part, giving you the names of some trial attorneys, will be up to you. But since you were unable to find anyone who would help, I suspect you would welcome a chance to sit down with an attorney who can handle your situation.
This part of our relationship will be conducted outside of the allexperts website. I will show you how to contact me at our self-help insurance claims www.SettlementCentral.Com settlement guidance website.
My ANSWERS to be part public, and part via my private e-mail address.
My “answer” to you, Stephanie, will necessarily be in a number of separate responses. We will make those responses through the website here at allexperts. BUT, because I do NOT want some parts of my answers to be public knowledge, I will have to communicate with you via my private e-mail address at our auto insurance claims help www.SettlementCentral.Com DIY website.
In my next follow-up answer to you, I will instruct you how to communicate with our staff so they will send me your message (we cannot answer all the inquiries we get, and so we must, of necessity, just send a form letter back—and we do not want that in your case).
So, for now all I wanted to do is to introduce myself, to let you know that I am unable to give substantive help (for the reasons cited), but on account of your tragic circumstances, I will be working with you to get you the help you need.
#1. Question: “What is the process for now—what is your plan to help me?
ANSWER: At present I am halfway in on a process of trying to find an expert here at allexperts to take on your questions. We need somebody who is familiar with most of those areas of the law I mentioned above.
I have sent private messages to four of the “experts” here at allexperts who I believe should know the California law and thus would be in a position to give you better guidance than I can. Two of them have responded to date, and both have declined to become involved in answering your questions, citing the complexity (i.e. they know mostly the insurance and wrongful death, but nothing about your state’s intestate succession laws) and the amount at stake, and not wanting to do harm to your cause. I will explain in a follow-up answer WHY we sometimes decline to answer questions.
Today is 48 hours after I got your question, so if my remaining two experts do not get back to me by tomorrow at noon latest, I will fire away to you my thoughts. I will also undertake to find you an attorney who is a member of your state trial lawyers association so you can find someone who is competent to help you. You will be the one to tell me whether or not you want me to undertake this step; maybe after your fruitless search for an attorney who will help you, it would be welcome for somebody to come forward just out of the blue.
#2. Question: “What is this about the state trial attorneys group, and why should I seek their help?”
ANSWER: Each state has a bar association, but they are a registry for all attorneys and are not plaintiff-orientated. In addition, each state has a separate organization of trial attorneys who work for plaintiffs. The state trial attorneys are listed on our car accident claims SettlementCentral.Com top dollar settlement help website under “links” Hence, go to www.SettlementCentral.Com, hit :links”, top right, and on that links page, look at the fifth item down, “Trial Lawyers Associations by State”.
In California the organization is called the “Consumer Attorneys of California”. This is NOT the state bar association. Instead, it is a group of attorneys who do work for plaintiffs, and who keep up to speed with continuing legal education seminars and the like. Trial attorneys are trained in the most effective ways to get the best results, and they keep informed of all the latest cases.
You cannot just go to their membership list, however, because it is not public knowledge (think of how they would be exposing themselves to being swamped by all kinds of marketing). But I do have a way to get two or three names in your area, and in light of the fact that I am unable to give you legal advice, I will personally make sure that the choices I give to you are competent in the areas of the law as required for your claim.
#3. Question: “Can you vouch for those names of attorneys, and what do you get out of this if they make a big fee?”
ANSWER: No, I cannot have any way of knowing anything about those attorneys, other than the fact that they are members of your state’s trial lawyers association and that they hold themselves out to be knowledgeable in the areas of the law in which you need help.
I cannot take the time to research them—nor the responsibility. That will be your job, and hence two or three names will be given so that you will have a choice in case the first one does not meet your requirements. It will be strictly up to you to do whatever you wish with the list I will give to you.
NO, we never ever make any kind of fee or referral kickback of any kind. Usually, the attorneys never know who made the referral—there is no reason for them to know I gave you their names. That way, the relationship is clean—just between the two of you.
#4. Question: “What kind of information will you tell these attorneys about me and this case?”
ANSWER: I will need some information in order to refine the search, and I will communicate that list of items to you once we establish our connection via my private e-mail address.
#5. Question: “Do you have any comment about my husband’s attorney?”
ANSWER: You must have been reading my mind, Stephanie. Yep, I do. We will do this in private, but one thing I do think you might consider relevant is how his fees will be structured. While it ordinarily would not be any of your concern if his fees were just between him and “Scott”, there is a possibility that he might be trying to make claims on behalf of your son’s estate, or to represent or bind the estate.
Two issues arise from that line of thought. First: what business does he have to represent or bind the estate? From what you have told me, nobody has applied for or been appointed as Administrator of your son’s estate—correct?
Secondly, any fees must be scrutinized in accordance with the Rules of Professional Conduct (RPC—or similar rules if known by another name in your state). I will recite chapter and verse on this topic later. But one example that is ripe for abuse if taking a fee on a contingency when there is really no significant work to be done.
For example if the attorney were to take a contingency fee for collecting such low policy limits, then, in my opinion, that fee can and should be set aside in accordance with the RPCs. There is a specific clause that would apply.
One other possibility to look at is collusion between Scott and the attorney, wherein the client lets the attorney charge a high fee for some official estate purpose (thus reducing the amount you would receive), but then gets a kickback later from the attorney. The example I have in mind was not a direct cash kickback, but a substantial reduction in fees the attorney was owed for corporate work he did. Just something to be aware of.
OK, Stephanie, that is about it for my introduction. I will do a follow-up once I hear from those two remaining California experts, and if they do not respond to me, no later than tomorrow night. BTW, this is Friday afternoon, May 10th as I write to you—so my follow-up would be no later than Saturday evening. OK?
Until then, keep your spirits up and know that one way or another I WILL work hard to get you the information you need and the professional help you require.
Best Wishes,
Dr. Settlement, J.D. (Juris Doctor)
Www.SettlementCentral.Com
wrongful death, intestate succession, attorney fees, SettlementCentral.Com
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QUESTION: I tried to respond to you yesterday, but it wouldn't go through. In answer to your question, to my knowledge nobody has applied for or been appointed as Administrator of my son's estate. This really hadn't crossed my mind because he had no significant assets, and lived with me as my dependent. Is there a reason why someone would need to be appointed?
Answer [POSTSCRIPT dated 5/17/13: I started this on Monday, but it took a bit of time to prepare, plus I was hoping to hear back from your state trial lawyers association (I left an e-mail format message yesterday on the site of their president). See the part below (#7) regarding the kind of additional information I would need to provide to him in my next message to his office. I trust you WILL hire an attorney, Stephanie, but just the same, I AM DUTY-BOUND to give you a lot of the following information as if you were going forward on your own. Hence., my delay just for the many hours it took me to provide and organize the following. OK?]
Good Monday Morning, Stephanie!
I was thinking of you yesterday, Mother’s Day—and I held you in my heart and in prayer—seeing you healed, whole, restored, and living in peace for all that you have gone through, and in the battles ahead. It is borderline inane to be talking about “battles ahead” when with the loss of your beloved son, one would think that everyone—from the impersonal insurance companies to the judicial system, and especially including your ex-husband, of all people— would go out of their way to get you through this with as little stress as possible.
Don’t they know that there is no stronger bond than that between a mother and her son? Do they even care? Don’t bother getting upset about what is happening to you, Stephanie—just let me be upset for you. Because as you can see, I am plenty unhappy about this whole thing, and that only fuels my desire to make sure I get you some good, competent legal help. I will mention only that insofar as those who may have contributed to difficulties in what should have been an easier matter, there is great power in forgiveness as a tool to move forward through what appear to be difficult challenges.
We have EIGHT topics for today, and then, if you wish, we will move to private communications.
#1. Thank you for the very generous feedback giving Dr. Settlement kudos for helping you—the importance of your comments for accident victims seeking help.
#2. A brief outline of your situation, with issues you may wish to research and discuss with any attorney you contact.
#3. Contracting with an attorney—NECESSITY for attorney & FEES you will pay.
#4. Communications with SCOTT’S ATTORNEY, or questions to ask your attorney to ask Scott’s attorney.
#5. NEW TOPIC: refusing policy limits offer at this time and instead taking the limits in partial payment of a judgment the estate would be awarded after a lawsuit.
#6. California State Bar rules of Professional Conduct trump the terms of the contract between Scott and his attorney insofar as the impact of fees on your son’s estate.
#7. A brief list of information I am asking you to provide to help find you the legal help I am seeking.
#8. Instructions you must follow closely in order to connect with Dr. Settlement at our website for auto accident help www.SettlementCentral.Com demand letter examples
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#1. Thank you for the very generous feedback giving Dr. Settlement kudos for helping you—the importance of your comments for accident victims seeking help.
You have once again provided very generous feedback for me, and as I explained, this can be a real help to other accident victims since it gives them information on which experts will go to bat for them.
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#2. A brief outline of your situation, with issues you may wish to research and discuss with any attorney you contact.
Here are the issues I see you discussing with your attorney:
(a) Is there an asset check for the tortfeasor so that we know we are not leaving money on the table by accepting the limits?
(b) Isn’t the work done by Scott’s lawyer regarding the insurance limits part of the estate business? And if so, do the fees comply with Rules of Professional Conduct 4-200?
(c) did Scott’s attorney make any determination whether or not my son had pain and suffering between the accident and his death?
(d) how much, if any at all, should be allowed by the estate for subrogation claims?
(e) Isn’t the limits payout on Scott’s UIM policy due to my son, since he was the insured thereunder? If it was an asset of his before his death, is it not also an asset under the wrongful death statute?
(f) Is my own loss of relationship not part of the statutory claim structure? And if so, isn’t my necessary medical care covered therein?
I would think you might be able to scan that proposed settlement agreement and send it an attorney if we can get a response from the Consumer Attorneys of California (CAOC). In #7, below, are the kinds of things we would want to be able to give to the President of CAOC so he can best determine who, among his members in your area, would be able (and willing) to serve you.
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#3. Contracting with an attorney—NECESSITY for attorney & FEES you will pay.
First of all, I think you can easily agree that even with your research there is a lot you did not know. That alone lets us together know that even if you were to use the insurance claim help www.SettlementCentral.Com online demand letter site, this situation is just too complex to do on your own. So even if you were a career legal assistant, with all that they know, you would still have to hire an attorney.
Let’s hit the difficult topic first: What kind of fee arrangement will you have?
QUESTION: Stephanie: “Can I hire an attorney on the contingency fee basis; I do not want to pay a lot of money down as a retainer and thereafter pay by the hour.
ANSWER by insurance claims expert Dr. Settlement: I cannot tell from my vantage point whether or not there is enough at stake to make a corpus (or body) from which fees could be taken. For example, if there were a dispute about the $50K that warranted attorney full-blown involvement, that would justify a contingency fee arrangement. And, if for example, the $100K—or even the $50K of Scott’s UIM limits were in play, that alone would also merit a contingency fee arrangement.
But, absent those two, I do not see much of anything that an attorney can use as the basis of a contingency fee. If those two big items are off the table, only winning the subrogation might (possibly) attract an attorney on a contingency fee basis. Let’s say that the subro Scott’s attorney agreed to pay is like $20K. If your attorney won the day for the estate, he could charge a fee of one-third, or $8.3K. That might be attractive, IF it appears something that is doable.
The beauty of the contingency fee basis is that every person gets her shot in court without having to pay up-front.
But in order to attract an attorney on a contingency fee basis, there has to be a corpus (a body of property or money) large enough, and there has to be a reasonable shot at winning. The fee percentage scale varies, depending upon the size of the corpus and the chances of winning.
You might very well be stuck with having to pay for your services by the hour. But the advantage of that is the amounts you stand to win, to gain, will be FAR MORE than the hourly rates. To see the truth of this, consider simply making reductions in two items: his attorney’s fees billed to the estate and reversing the subrogation payout. Those could potentially mean thousands of dollars in your pocket, at an hourly fee total of maybe like $3,000.
On our site, members learn negotiation on attorney fees www.SettlementCentral.Com tips for lower contingency fees. Is it worth the cost of membership for you to learn such tips? I do not know, but of course one-hundred bucks is pretty small in comparison to saving thousands of dollars if you have some success. Even so, membership at SCC is NOT recommended for you. So I think you might just hang on to your money, and hold off on purchasing a membership at our website, Stephanie, because I have an idea no an attorney is going to want to go on a contingency (UNLESS my thoughts on the UIM limits are right) and so there would be little value in your purchasing a membership with us. So you had best be prepared to invest some good money in hourly fees, but the amount you will save on the other side should be SIGNIFICANT.
Dr. Settlement knows how to hire a personal injury attorney. It is essential to invest the time and resources to find a good attorney, and Dr. Settlement is an expert on attorney tricks and tips on how to deal with attorneys. Hiring a good attorney involves three steps.
#1. Do the necessary research so that you can establish a pool from which to seek out your prospective attorney (I am doing that for you with the California Consumer Attorneys names); and
#2. Create ATTORNEY BAIT: invest time and resources to create a package for the attorney that helps you to demonstrate:
(a) “good” liability, and
(b) “good” damages that are provable, and
(c) that you are a “good” plaintiff and will be a good client.
#3. Be prepared for the interview with the attorney.
With respect to this last item, remember that good attorneys do have plenty of work, their livelihood does not depend upon their taking you on as a client, and that YOU are also being interviewed for the job of being this attorney’s client. Be organized and somewhat objective, not whiner on a high –horse of outrage. I can pass along some of the kinds of things that are a turn-off and did cause our office to decline to represent certain would-be clients.
(a) Avarice or greed, combined with an over-inflated value of their claim.
(b) The know-it-all, “sea lawyer”, who has sophomoric knowledge (i.e. mostly ignorant of the important parts, like someone who watches Fox so-called “news”).
(c) Not willing to do their part of the work (i.e. having a first discussion with friends or co-workers to get an idea of what they might be willing to say): “I am paying you to do this.”
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#4. Communications with SCOTT’S ATTORNEY, or questions to ask your attorney to ask Scott’s attorney.
I have no reason whatsoever to suspect that Scott’s attorney has done anything but an outstanding job representing the estate’s interests. Just the same, here are a few issues you might want to inquire about, or also to ask your own attorney about.
To Scott’s attorney:
If you did any work on settlement of the estate’s claim versus the tortfeasor, or the subrogation claims, can you please provide the following:
a) Copies of all medical records you obtained that might show my son had pain and suffering before his death.
b) Copies of your notes of interviews with the EMT (or response crews) and ER staff that might show my son was conscious and thus had pain and suffering before his death.
c) A summary of your thoughts regarding my son’s medical records that might show he was conscious and thus had pain and suffering before his death.
d) A summary of your thoughts regarding an action for pain and suffering under the survival claims statute.
e) A summary of all data collected to show the value of income my son might have earned had he lived.
f) A summary of your thoughts on computation of lost income to the estate.
g) A summary of your communications with the insurance adjuster for the tortfeasor.
h) Copies of all communications with the adjuster, be they hard copy or electronic records.
i) All of the asset-check data you obtained in deciding to accept policy limits in lieu of a lawsuit.
j) With respect to Scott’s UIM policy, the name of the insurer, the policy number, and the names and contact information of all whom you have contacted with regard to that policy.
k) With respect to Scott’s UIM policy, please provide me a copy of the entire policy.
l) With respect to subrogation claims, a summary of those claiming subrogation interests and your recommended disposition of those claims.
m) A summary of your communications with representatives of those claiming subrogation interests.
n) With respect to subrogation claims, the rationale for paying any money whatsoever from estate funds.
o) With respect to your fees charged for estate work, kindly detail the charges and explain the basis for making them.
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#5. NEW TOPIC: refusing policy limits offer at this time and instead taking the limits in partial payment of a judgment the estate would be awarded after a lawsuit.
WARNING: be prepared for a negative reaction to this from all attorneys. We want our money NOW, and we will go to great lengths to scare our clients away from this. OK, Stephanie, that is a bit of truth and a bit of overreaching on my part. What I am talking about here can just be skipped over, but I am duty-bound to bring it up because we do not know at this point what kind of assets that tortfeasor owns. If his assets are nothing special, as opposed to if he has some good equity in his house, some investments, etc., it makes best sense to just take the policy limits and close the matter.
Has there ever been any communication with you regarding the rights of the parents and the rights of the estate against the tortfeasor?
Wouldn’t you think that if an attorney was hired to pursue claims on behalf of the estate he might want to let his clients know about their individual rights and their rights claiming through the estate?
You know, Stephanie, maybe I am waaaay off base here because this attorney probably already did discuss these topics with Scott. He would have liked to talk to you about them, but he did not want to risk being seen as overreaching by talking about the claim with a party that had no attorney. So let’s not judge him until we know the facts, but we still must proceed between the two of us to discuss the topics we hope he would have already discussed in conjunction with his work for the estate.
GIST OF FOREGOING LIMITS UNTIL AFTER YOU GET A JUDGMENT
#1. If you determine either of these two things in advance, you might want to forego taking the policy limits at this time and instead take them as partial payment of a judgment the estate would win in court.
(a) if the tortfeasor has substantial assets above those that are exempt from execution [i.e. California has a list of assets a judgment debtor gets to keep once a judgment creditor starts to “execute” (i.e. to size or sell) on her judgment]; OR
(b) if the tortfeasor cannot avail himself of the protections of bankruptcy court and he has even moderate assets and a stream of income that could be garnished.
Of course if you lose the lawsuit, then you get nothing, and in that sense, it is true that there would be no insurance. So we attorneys always try to “sell” our clients to accept the policy limits by saying that it is a big risk—they could go to court and get nothing. But this is a pretty clear case of liability, so the only issue really is just damages.
I could be waaaay off base here, Stephanie, but insurance policy limits Dr. Settlement knows insurance limits claim procedures. One thing that is easily disposed of by most attorneys is a decision whether to get paid right now, or to forego taking the limits RIGHT NOW (we attorneys need the money now, not later), and instead pursue a long and time-consuming task of a court case, with payment of the insurance policy limits at the end, and thereafter as monthly wage garnishment checks arrive. One little thing that argues in favor of going to trial in a death case versus a living victim case is that this one is a lot easier. Your attorney would not have such extensive proofs in a case the estate might bring since it is unlike those longer personal injury lawsuits, which are more difficult and expensive and time-consuming because of the need to put on a lot of medical evidence and lay witness evidence on the ways in which the accident has impacted the victim’s life.
I have to be true to you and say that only on two occasions did I personally elect the latter course—e.g. going to trial. And it paid off for my clients in each case—BIG TIME.
In the first case, the tortfeasor had violated the law via being DUI, so he could not discharge our judgment in bankruptcy, and we got a huge judgment, payment of the policy limits in partial satisfaction of the judgment, and we attached one of his two vehicles, and a snowmobile, and garnishment of twenty percent of his wages.
Seven months later, we found out that he had refused to keep my office informed of his bank accounts and his employment (which you can require him to do) and we brought him in before a civil motions judge, who swore him in and had us go to a conference room where he was made to provide all updated relevant information that would allow us to pursue him (e.g. to garnish his wages and his bank accounts). After 13 months of this, he took out a loan against his house, and we took a substantial reduction in the balance owing for a cash payment to satisfy the judgment.
In the second case, we were right away offered policy limits of $50K. I thought OK, let’s take it, but just to be sure, and in part because his car was newer and his house in a good neighborhood (pre-Internet days, so no easy way to value real estate—but if there were any question, you can get a broker to do a drive-by guesstimate of value, and his mortgage amount is now available to your attorney online), I demanded that the tortfeasor make a SWORN-ON-OATH asset and liability disclosure. Wouldn’t you know it: he had accumulated A LOT of wealth, but had neglected to update his policy limits. By failing to increase his limits, he had put his personal assets at risk.
We filed the lawsuit, went through all of the discovery process, through the court-mandated settlement conference, and we started the trial. Once the jury was selected, but before opening statements, the tortfeasor made an offer of $118K. We accepted it right away, and we were happy we had decided to forego the out-of-the-box offer of policy limits.
OK, Stephanie, you can just skip this, as I said, but my duty to you mandates full discloser of all the possibilities, so I have to write the following to describe how and why we sometimes refuse the limits and go to court instead.
This might be totally unnecessary if your son’s tortfeasor can just discharge the estate’s judgment in bankruptcy court, leaving you only the policy limits, even though you won a much larger judgment. But time consuming as it is, and probably even being the worthless exercise that it is, I still am duty-bound to go through all of this with you just on the very remote chance that
(1) this tortfeasor might have significant assets that are subject to execution (i.e. to collect on a judgment), OR
(2) for some reason bankruptcy court is not available to him and he has at least moderate assets and a stream of income that can be garnished.
The good news for you, Stephanie, is that even though I am duty-bound to write this, you do NOT have to read it—so feel free to JUST SKIP IT if you wish!
TOPIC: Electing to sue and take the policy limits in partial satisfaction of the judgment.
People often mistakenly believe that if you sue, you lose the right to collect from the tortfeasor’s insurance. That is not true since (unless you lose the court case) the insurance is available to pay in partial satisfaction of the judgment.
You know, the plaintiff does not ever lose the insurance limits when you sue (unless, of course, you lose the lawsuit). The plaintiff gets the judgment—let’s say it is like $200,000, and the insurance limits are then paid in to the plaintiff, with the remaining $150K to be collected from the tortfeasor’s assets and through garnishment of wages and any other assets—for as long as it takes, all the while earning you interest at the statutory rate.
If discharge in bankruptcy is available, the judgment debtor can use it, but he will not be able to retain any assets whatsoever other than those minimal assets listed as exemptions to execution of a judgment in California law. I have not researched that, but in most states, he gets some equity in his house (around $40K is probably average), and the balance of the equity goes to pay down the judgment. YES, the actual home will be sold, the bank loan paid off, his exempt portion (e.g. that $40K) paid to him, and all the rest goes to pay down the judgment.
He gets to keep some little cash (less than $2K is average). He gets one vehicle (the maximum equity is limited—e.g. he cannot just go out and plunk down $20K cash and expect to keep the car). He gets a wardrobe (no recent purchases of big ticket items), normal household items—furnishings and appliance, tools of his trade, and other items as listed by your state. ANY transfers of money for less than full market value can AND WILL be set aside, the money WILL BE taken from the person who got it and paid to the Trustee in bankruptcy to be distributed to the creditors.
Everything else goes to pay down the judgment. Other creditors also get paid from the proceeds, but unless they are secured creditors (i.e. mortgage of bank loan on car), YOU, the judgment creditor come AHEAD of all other general creditors (e.g. credit cards) insofar as using his assets to pay down you judgment.
The original judgment bears interest at the statutory rate and lasts for ten years and can be renewed. The tortfeasor, now called the judgment debtor, can be made to keep the winning plaintiff, now called the judgment creditor, informed of all new employment, all new income, all new money received by him (e.g. he might inherit $90K), etc. If he refuses, he can be made to come into court and to testify under oath, with the sanction of being held in contempt of court should he fail at any time to fully cooperate.
OK, Stephanie, you can wake up now—that useless exercise is done.
As I say, most all attorneys will fight this idea and present horror stories to their clients because they do not want to wait for their money, and this whole process is a hassle and takes a lot of work. But, it CAN PAY OFF—especially if the tortfeasor has any assets, investment portfolio, equity in his home, etc.
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#6. California State Bar rules of Professional Conduct trump the terms of the contract between Scott and his attorney insofar as the impact of fees on your son’s estate.
There is no basis whatsoever to think this, but I cannot help myself from wondering whether this attorney has cut himself a thick piece of pie in taking contingency fees out of the tortfeasor’s policy limits. Does he say what his fees are and how he calculated them?
Now, I do hope I am WRONG here, and in fact it is more likely that the attorney has charged only a few hundred dollars to write the one brief letter that would be required by him to obtain tender of the policy limits
If he represents the estate in the negotiations with the tortfeasor, he represents your interests, and he MUST DISCLOSE to you both the amount of his fees and explain how they were calculated.
If the tortfeasor's policy limits are only $50K, you (the estate) should NOT PAY FULL one-third ATTORNEY FEES. A blind dog with a note in its mouth could get a settlement for those limits. It is a common practice for attorneys to make a show of paper-shuffling work to make it appear they have earned fees. Especially in low policy limits cases, they will 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, and my best guesstimate is that it is not true here: anyone could have sent in a one page letter to get those limits paid since the tortfeasor’s insurer owes a duty of good faith in claims handling, and there is no reason whatsoever to withhold payment of the full limits. What I would look for is to be sure he did not charge a contingency fee on that award of the policy limits since there was never ever any “contingency” about getting the limits: it was always a sure thing. That should be an hourly charge.
NOW, with respect to your own attorney fighting to get you part of Scott’s UIM limits, THAT could rightly be a contingency fee charge of the usual one-third. You have no part of that now, and so a fight by your own attorney to split the proceeds of the UIM claim would yield you half, and a contingency fee could reasonably be charged against that half that your attorney did get for you.
But as for Scott’s attorney charging such a fee for the tortfeasor’s limits, your state bar association http://www.settlementcentral.com/links.php will NOT PERMIT A FULL FEE in such a case. The California State Bar Association has issued Rules for Professional Conduct and Rule 4-200 governs attorney fees and IT TRUMPS and contract Scott may have signed with his (the estate’s?) attorney.
If a contingency fee of one-third is too much, what IS an appropriate fee? Probably an hourly fee would be reasonable. I have no idea what work this guy did, but the fee has to meet some standards of reasonableness, as further explained in Rule -4-200. [NOTE: MY COMMENTS WILL BE IN ALL CAPS FOLLOWING CERTAIN FACTORS.]
“Rules of Professional Conduct
“Rule 4-200 Fees for Legal Services
(A) A member shall not enter into an agreement for, charge, or collect an illegal or unconscionable fee.
“(B) Unconscionability of a fee shall be determined on the basis of all the facts and circumstances existing at the time the agreement is entered into except where the parties contemplate that the fee will be affected by later events. Among the factors to be considered, where appropriate, in determining the conscionability of a fee are the following:
(1) The amount of the fee in proportion to the value of the services performed.
(2) The relative sophistication of the member and the client.
(3) The novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly. [SIMPLE TASKS HERE—REQUIRING ONLY MINIMAL SKILL?]
(4) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the member.
(5) The amount involved and the results obtained. [SMALL AMOUNT FOR A WRONGFUL DEATH CASE, AND THE RESULTS WERE NOTHING OUT OF THE ORDINARY—TENDER OF $50K LIMITS WERE TO BE EXPECTED WITHOUT MUCH LEGAL WORK.]
(6) The time limitations imposed by the client or by the circumstances.
(7) The nature and length of the professional relationship with the client.
(8) The experience, reputation, and ability of the member or members performing the services.
(9) Whether the fee is fixed or contingent.
(10) The time and labor required. [HOW MANY HOURS SHOULD IT HAVE TAKEN TO DO WHATEVER IT IS HE DID?]
(11) The informed consent of the client to the fee.” [DOOFUS NEVER TOLD YOU ABOUT HIS FEE, AND IF HE REPRESENTED THE ESTATE, HE HAD A DUTY TO DO SO.]
http://rules.calbar.ca.gov/Rules/RulesofProfessionalConduct/CurrentRules/Rule420
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:
“Rules of Professional Conduct
The California Rules of Professional Conduct are intended to regulate professional conduct of members of the State Bar through discipline. They have been adopted by the Board of Trustees and approved by the California Supreme Court pursuant to statute to protect the public and to promote respect and confidence in the legal profession. The rules and any related standards adopted by the Board are binding on all members of the State Bar.”
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#7. A brief list of information I am asking you to provide to help find you the legal help I am seeking for you:
What kind of information wlll be helpful?
(1) the location of the case—the city and county where the accident case would be filed if it were to go to litigation.
(2) the city and county of your son’s residence (your house)
(3) the exact date of the accident;
(4) some more detail on the proposed settlement agreement. Maybe scan it and attach it to your e-mail?
(5) has the attorney ever talked about checking the assets of the tortfeasor?
(6) probably I am just being hyper-vigilant, but back once again on the attorney fees, does he say what his fees are and how he calculated them? If he represents the estate in the negotiations with the tortfeasor, he represents YOUR interests, and MUST DISCLOSE his fees and explain how they were calculated.
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#8. Instructions you must follow closely in order to connect with Dr. Settlement at our website for auto accident help www.SettlementCentral.Com demand letter examples
Instructions you must follow closely in order to connect with Dr. Settlement at our demand letter sample www.SettlementCentral.Com insurance help website are as follows: top right of our home page use the “contact us” link—go there and complete the form. In order to keep the staff from putting your message with others for a form letter response, you have to give them notice that they will recognize.
Insert in the message: “allexperts.com case #A3927—California”
Then just go ahead and say what you want to say. Give me as much of the information in #7 as possible. Make sure you put your e-mail address one more time right in the text of your message to me.
Staff has been warned to be on the lookout over the weekend for your e-mail. They will forward your e-mail to me and I will respond. Whatever we discuss will remain between the two of us, unless a referral attorney wants some information. Except, I will explain the weird way I reference me and our website in these answers—just in case you were wondering about that!
I expect our staff to alert me right away this weekend, and I will drop whatever I am doing to write back to you. The goal now is to get your information to that president of CAOC just as soon as we can.
We will treat your information as confidential, but that does not mean we have an attorney—cleint relationship. I am NOT representing you or your interests—just trying to put some issues together and some summary of facts so we can find somebody who will help you.
OK, Stephanie, I trust that this long effort will help you, and if you find value in my efforts on your behalf, I would once again appreciate your taking the time to provide some feedback so victims who come after you will know where to look for the help they seek.
If you wish to proceed with contact of an attorney as we have discussed, use that means of private communications above and we can move forward.
Best Wishes,
David,
aka Dr. Settlement, J.D. (Juris Doctor)
www.SettlementCentral.Com
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Good morning, Stephanie,
I am sorry that allexperts.com did not let you through right away. You do not need any inconveniences right now, but wouldn’t you know it—trying times like this are precisely the moments every little thing seems to pop up. Right? Speaking of which, my brand new two month old $55 Logitech mouse just quit working. No, it is not the batteries, so I will have to take it along on my errands today to see if the computer guys can help.
It is stuff like that, and in your case, like not being able to get a question to me—sometimes I am thinking these are just little things to make me grin and to appreciate the fact I AM HERE still, in the game of life. And that brings up the hole in my heart for the loss of your son, especially yesterday.
I thought about you yesterday, Mother’s Day. I have already written a lot about that in the follow-up piece I am doing for you (see below), so we will just let that be until I send that later today—or tonight if I cannot get a quick fix on this mouse.
Your question today was posted just as I hit the halfway mark in a long follow-up I am preparing for you. Got interrupted with someone on our self help insurance claim SettlementCentral.Com settlement site. A member there had an emergency that required my attention this morning.
But I will get back to my follow-up message just as soon as I return from my errands. Yes, Stephanie, I have so very much to say to you, starting with my thoughts and prayers yesterday, and some comments on that.
Then, we have to discuss what kind of money the attorney is seeking, and if it is as appears, you are being asked to pay half of his bill. I have researched the Rules of Professional Conduct in your state regarding attorney fees because I am concerned he might be trying to charge a contingency fee for work that a blind dog with a note in its mouth could achieve.
In that draft document I have already given thanks to you for the most generous feedback you posted for me. I will explain later why that is important for those who come after you seeking help. While our little egos like to be acknowledged, the real benefit of feedback such as you left for me is to give guidance so future accident victims can best know who will do some real work for them. That is because some experts will not give even ten minutes to help victims, let alone an hour or two.
Bottomline: unfortunately, we do have some experts on this site who will not take the time needed to help questioners, but instead will just inform them that they need to see an attorney. Hello—do some of these experts really think people go to all the trouble to find this website and to write out their problems just to be told that: “cases vary by circumstances, so I cannot give an answer, and you have to see an attorney”?
So that is the reason your feedback serves a good purpose.
For now, let’s just address your one question here, and all the rest will be in my follow-up message, including the way to make our private communication channel on our auto accident claim www.SettlementCentral.Com insurance help website.
YOUR QUESTION: “Is there a reason why someone (an estate Administrator) would need to be appointed?”
Dr. Settlement’s ANSWER: Court appointment is NOT required, and can be an added expense (albeit a small amount since the appointment forms are pretty simple). Pursuing auto accident claims for injury or death are one reason for appointing an administrator, and the orderly administration of estate matters is the main one. What if you and your husband wanted to challenge exclusions in your auto policies? Although an attorney could make an informal settlement for the estate, you must have an Administrator to file any lawsuit papers.
You already know that Dr. Settlement is the acknowledged top auto accident insurance claim expert at allexperts.com, but two-bits says you did not also know that Dr. Settlement knows probate as well. It is a terrible consequence of our modern traffic, but death occurs, and so a top auto accident expert like Dr. Settlement knows insurance claims done through probate.
So, Stephanie, here is a quick look at probate for wrongful death and administration of the decedent’s estate. What I will describe is how the estate process works for everything, and then, we will top off the examples with the topic of a wrongful death action.
To start with, a decedent will die with or without a will. With a will is called testate, and without a will is called intestate. All states now have summary procedures whereby no formal probate filings in court are required, unless the parties who are the takers under the estate laws wish to create the formal position of Administrator. Such a person has formal powers that are necessary to pursue a wrongful death claim, and to approve of expense claims and divide assets.
Unless California is different than most all other states, for smaller estates, no formal court filing is necessary UNLESS those with an interest in the estate wish to have somebody formally handle claims, pay bills, divide the assets, etc. So, for smaller estates, it is the option of those who have an interest in the estate. It sounds like this is the route you and Scott have decided to take, and that is just fine unless the estate wants to make claims versus other tortfeasors, or to pursue the assets of this truck-driving tortfeasor. For example, what kind of asset check has Scott’s attorney provided you such that you wish to ignore his assets? Has he even discussed this aspect with you?
True, if you were to obtain a judgment against him it would be a multiple of his policy limits, but what could you collect if he were to discharge your judgment in bankruptcy? Well, some judgment debtors cannot discharge in bankruptcy, some have many non-exempt assets, and most have wages that can be garnished for many, many years. I have personally seen three instances where the plaintiff’s attorney got the judgment, took the policy limits to reduce the judgment, and then went after the tortfeasor’s assets and got a continuous garnishment against his wages.
If your son died without a will and no spouse or children, then, by the laws of what we call “intestate succession”, both parents are the first to share the estate assets. If everything is pretty clean, and no insurance issues to fight, and all debts agreed, then it makes no sense to appoint an Administrator.
But if you want to fight the insurance companies on exclusions or on subrogation, once the fight is not resolved at the letter-writing stage, then it will usually be necessary to appoint an Administrator if you are going to make a claim for wrongful death. Neither you nor Scott nor his attorney can file a lawsuit to pursue such a claim unless you have authority to act for the estate of your son.
And by the way, what is this subrogation agreement? Is this going to reduce the net payout to you and Scott? If so, does the attorney know about it because that would seem to be a good target to increase the net to the estate.
In addition, the Administrator is responsible for marshalling assets, listing debts, paying bills, and then distributing the assets of the estate. Of course in most situations like yours, this can be done informally, with no court appointed Administrator. It is just the pursuit of the wrongful death claim or the subrogation fight that makes it desirable to anoint someone with formal power to act. What is the amount at stake in the subrogation waiver?
But appointment is also helpful if there are differences as to what claims should be paid. Already you have mentioned such a difference regarding a claim you wish to make, and the response from the other side is to deny your claim. The court process allows one to ask the court for approval of your claim.
Here is what I am curious about: what precisely is Scott’s attorney doing in the picture? It sounds to me like he already is representing the interests of the estate in dealing with the insurance company. That should NEVER happen unless you specifically agreed, or he went to court and had himself appointed as Administrator. Of course I know that is preposterous since he would have had to give you notice of that, and no attorney will ever risk Bar sanctions by taking such action without giving the other side notice. So that has me confused; did you give him authority to act for your son’s estate? I suppose that one could infer that you informally granted him permission to act, so it is probably no big deal unless he tries to say he cannot speak to you on account of some kind of conflict—OH—I guess he already DID say that.
Get the picture here, Stephanie? This guy can represent the estate in dealing with the insurance companies ONLY with one of two grants of authority. Either he is doing so with your permission, since you are one-half of the ownership, OR he is doing so under cover of authority of the court by means of having been appointed.
But before we hang that attorney out, take it from his perspective. His client asks for help and so he makes a settlement of the claim for policy limits. He really CAN speak to you about such estate matters, but on account of being fearful of any accusation of dealing with an unrepresented party, he declines to speak with you.
I can sort of understand that. What I cannot understand is his advice on Scott’s UIM policy. You will need California help on this one. But pretend your son lived. HE, not Scott, would be awarded any sum under the policy, correct? And then if he does not survive, why does not this asset, like all other estate assets, devolve through the intestate succession statutory scheme?
Has Scott’s attorney done anything that would undermine the interests of the estate, either in purported settlement with the tortfeasor or settlement with the UIM carrier providing for payment to Scott?
Probably your attorney will eventually agree to settle the third party claim for the $50K limits, BUT that is NOT for Scott’s attorney to say, unless he has your authority. Supposedly this is the purpose of the document he wants you to sign. So you are smart to hold off on signing it until these issues are resolved.
Your statute provides that both you and Scott have an equal shot at being appointed Administrator. This is a process that results in the one who asks being granted what we call “Letters of Administration”.
Do not respond to me now, but once we get the follow-up communication going, let me know whether or not you have ever heard of such a thing in the case of your son’s estate. Geez, not to complain, but this no-mouse deal is driving me nuts. My hands and fingers are big, so using this little pad on the laptop to move the cursor around and copy and paste, etc. is a hassle. Plus, I wonder whether or not I broke the tiny reset button when I stuck the tip of a ball point pen down there.
That is the only thing that is going to delay my getting that longer follow-up message out to you later this afternoon. It has moved from morning to now nearly 3:30 my time because of the extra depth I wanted to give you for better understanding. While our car wreck claim www.SettlementCentral.Com insurance settlement website is located in Seattle, I get senior privileges and can work out of the office. Hence, I am now at my wife’s home in Alberta. If we have a need to speak, that is where the phone origin number will show from (is that even a sentence?).
What I would like for you to do until I get my follow-up message out to you and we get a chance to communicate directly is to give some thought to these four topics:
#1. Whether or not Scott or his attorney ever mentioned anything like the topics I have discussed herein.
#2. What kind of time frame are we working with here? Is there any kind of deadline you are aware of?
#3. What kind of detail or justification is given for the sums taken from the $50K by Scott and his attorney? I have already done research on attorney fees and abuses in California, and there is NO WAY this guy is going to be allowed to take the so-called “standard” contingency percentage.
#4. Give some thought to the accident and the scene and how it happened because in wrongful death cases we want to explore every avenue, and there is the possibility of negligence of an additional party. This is always a very remote search, but it IS justified in some cases. I have sued a property owner who let vegetation grow in the right of way that blocked the view of the tortfeasor driver. There are cases supporting claims for inadequate roadway design. For any claim versus a municipal corporation, there is a shortened time to file the claim with its risk manager.
Finally, among the things I will need to go forward is the proposed distribution of assets and where you dispute their plan. Yes, I do see the exclusion of your claims for reimbursement, but what about the claim by Scott? For example, the amount tagged for you seems to be reimbursement, but what about his amount? What seems fair is to divide the residual corpus of the estate award equally, once bills are paid. For example, attorney fees and reimbursement to you and other obligations would be met, and then the balance is divided equally. Is that their plan?
Anyway, Stephanie, I will—hopefully—get my mouse fixed so I can finish my document to you by later today or tonight. For sure no earlier than tonight because I will not be back to my computer until well after dinner. If you feel it is justified in the time I have given you to explain this (excepting, of course, the whining about my fingers making it more difficult), I would appreciate your taking a moment to provide feedback once again—in part for the reasons I cited above.
Until tonight,
Dr. Settlement, J.D. (Juris Doctor)
www.SettlementCentral.Com
Wrongful death, intestate, administrator, Dr. Settlement, insurance, SettlementCentral.Com
