QuestionMy son was a passenger in an auto accident. The auto insurance has a maximum PI of $100,000 per individual. My sons medical bils are above $500,000 and on going for the rest of his life. The Insurance is offering us the full $100,000 plus $10,000 on a life policy. Is there any reason I should not accept this and push for his full expenses?
AnswerHi Tony,
I'm sorry to learn of your son's tragic accident.
I am assuming that you have handled this without an Attorney, otherwise you would be talking to him instead of writing to me. Since you have negotiated to this point, that means an attorney won't get 33-40%. Since the insurance company has offered you the full limits of their policy, there is nothing left to push for from them.
There are two other areas where you should look before agreeing to a settlement.
Was the at fault driver also the owner or a resident relative of the owner? If not, then the driver may have his/her own policy or have coverage under a parent's policy that will apply as excess limits now that the primary policy policy is being exhausted. If the at fault driver was also the owner or a resident relative, I suggest that you hire an independent firm to research the assets of the driver/owner and get a complete picture of any assets that might be attached by filing a lawsuit. You should not consider the value of the private home, because very rarely will the court force a person to sell their home to settle a judgement. This private firm will search for stocks, bonds, income properties well as the equity in the home. In cases as severe as your son's, where there is a large equity in a home the courts have allowed a forced sale, but allowed the other party to retain enough for a down payment on a new residence. You need to request that they do a deep research to see if the owner/driver has tried to 'hide' his assets by transfering them to a parent, child or other relative. People get scared and do this all the time, but it is illegal to sectrete assets after the fact and those assets can be forced back to the owner and atached. I once had a client who was severly injured by a driver who only had $15,000 insurance, but a deep research of his assets turned up 7 rental homes that were free and clear and he had transfered ownership to brothers, sisters, parents and children. His attorney was able toprove that this was done after the accident and the court forced them back to the original owner and forced sale and increased my clients award.
I would estimate that a private firm doing an asset research will charge between $800-$1,500.
Every state has a Statue of Limitations on bodily injury from an auto accident. In Tennessee and Kentucky, that time limit is one year. Most other states allow two years
and a small few allow 3 or more. This means that you must settle the case or file a lawsuit before the statue date.
If you accept the check from the primary insurance company, you will be required to sign a release of all claims against the driver/owner. This means that the case is closed. You can never go back with with a lawsuit if you later learn of more insurance or of assets.
If you learn that the at fault driver was not the owner nor a resident relative and/or that the owner does have attachable assets, then you need to immediately make an appointment with the very best Personal Injury Attorney in your area, or even from a nearby area. Be sure that you choose an Attorney with trial experience because this case would definitely go to trial. The latest statistics that I have read states that 85% of the personal injury attorneys have never tried a case in court.
The first consultation with the attorney is usually free in all states because the attorney works on a contingency basis whereby he accepts 33 1/3% for out of court settlements and 40% in cases when the case goes to trial.
Since I assume that you have done all the work to reach the agreement for a policy limit settlement plus a $10K insurance policy, you want to make it very clear to the attorney that you are not willing to give him 40% of those monies, but 40% of whatever he can recover from assets and/or a second insurance policy. If your asset research has found $50,000-$100,000 or more, he will be willing to handle the case without receiving part of the 100K that you have already gotten an agreement for. You must be certain that this is clearly spelled out in the contract of hiring that he will ask you to sign. Before signing a contract with the Attorney, you might consider hiring another attorney to read the contract to be sure it clearly rules out any rights to him receiving any of the settlement from the primary insurance company.
Once you retain an attorney, the entire offer from the primary insurance company comes 'off the table' and can never be mentioned in court, it's like it never happened.
Your attorney would have to win those to amounts back in front of a jury.
Your retaining an attorney forces the primary insurance company to defend their client in court, and the will not settle with you until after the court ruling.
I hope this has been of help in sending you in the right directions, even though you probably have more questions now than you did before. Please feel free to continue writing to me as questions arise. Next time, include your state of residence and the state where the accident took place.
Your feedback by rating my answer will be appreciated.
Sincerely,
Bennie
San Francisco Bay Area 11-27-07 11:47 AM PST
