QuestionOctober 2007 my daughter let a friend drive my car without my knowledge or permission. I knew the friend but knew nothing about him really. My daughter has been told from the day that she got her license that nobody else is allowed to drive my vehicles. My daughter was in the passenger seat. The friend pulled out from a stop sign and was hit by a motorcycle in the rear drivers door. There was 2 people on the motorcycle and they were taken to the hospital. The driver of my car was ticketed and was taken to jail for driving on suspended license. My insurance paid for the motorcycle and repairs to my car less my deductible. I have $50,000/$100,000 coverage. The driver of the motorcycle , I have been told settled for $15,000 but the passenger of the motorcycle, I was told asked my insurance for $55,000. My insurance offered her $35,000. She has now filed a lawsuit against the driver of my car (Who can not be found to be served) and myself. My insurance has provided me an attorney. I have changed insurance providers since the accident and I am not sure if I should get my own attorney because of that. The attorney told me not to worry that even if she is awarded a settlement above my limit of $50,000 it will not cost me anything. The attorney has requested that I be dropped from the lawsuit because I did not give permission for the friend to drive my car. My questions are: (1) Should I get my own attorney (2) If the court rules against me for more than my insurance limit of $50,000 what can they take from me? I have no real assets just payment books. I am receiving a Navy retirement. Can they garnish my wages or take my retirement check? I pretty much live payday to payday. (3) If the motorcycle owners insurance has a underinsured motorist policy will it pay the difference between what she wants and what my insurance covers? Thank you very much for any advice you can offer.
AnswerHi Jamie,
I'm sorry to learn of your situation and am sure that it is placing a lot of stress on you.
Once you give a person, in this case your daughter, permission to drive your car, there is implied permission that she can give that same permission to a second party. The second party would then have implied permission to pass permission to a 3rd party and that party on to a 4th party, etc.
I have seen situations where the actual driver was 7 steps up the chain from the first party that was given permission.
It is very clear that the insurance company of record sees this as a permissive use situation since they have already paid the property damage and an injury settlement to the driver of the motorcycle.
Since they have already agreed to accept liability, no court is going to reverse that and let you off the hook.
I find it very strange that they would assign a lawyer who thinks that
he can get your name dropped from the lawsuit because, in his opinion,
there was no permissive use.
There is absolutely no chance of that happening.
Every state has a statue of limitations, and during that statue the claim must be settled or a lawsuit filed, otherwise the injured party forever loses all rights to collect even one penny.
Approximately 3 or 4 states have a one year statue, approximately 25 states have a 2 year statue and the balance have statues that range from 3 to 6 years.
By filing the lawsuit, this stops the statue time limit and gives the attorney more time to negotiate with the insurance company. No attorney EVER wants to go to court on a case this small. He is already entitled to 33.33% of the settlement as his fee, if it goes to trial, his fee becomes 40% or about $4,000 more. All the extra preperation time plus three or four days in the court room and he is losing money plus all the new clients he might have gotten if he was in his office instead of being in court.
When an attorney files a lawsuit, he always asks for more money than he actually expects to receive, knowing that he can NEVER increase his demand but can certainly settle for a lesser amount.
Based on the information received and collected by your insurance company at the time of the accident, they have evaluated the seriousness of the injury, the amount of medical bills and lost wages and feel that $35,000 represents a reasonable and adequate settlement.
They will continue good faith negotiations with the attorney and if he presents more reasons for a higher settlement, they will increase their offer to an amount not to exceed $50,000. Even of they should increase their offer to $50,000, they will not pay a penny unless the injured party signs a full release and legally agrees to never pursue a additional claim against you. If such an offer is made and accepted, the injured party immediately gets a check. Otherwise, they get nothing until after the trial (and due to heavy court schedules a trial may not take place for two or three years).
A trial could easily award an amount less that the current $35,000 offer. Once a case goes to trial, the $35,000 offer becomes void and can not be mentioned at the trial. A jury could easily award an amount less than the $35,000 now being offered. Going into court is a crap shoot and no attorney likes a crap shoot.
Based on my 44 years of experience, in my opinion, the odds of this going to trial are less than 0.01%.
However, assuming that it does go to trial and the injured party does win a settlement greater than $50,000 and then collects the difference from the underinsured motorist portion of the motorcycle policy, the insurance company for the motorcycle has the legal right to recover from you the amount they paid the injured party.
As long as the insurance company is negotiating with the attorney, I see no need for you to hire an attorney that, based on the possible time involved could easily cost you more than $5,000.
At a point in the future, the insurance company will notify you if they have settled the claim or been unable to negotiate a settlement.
If you are notified that they are unable to reach a settlement and the case will be going to trial, then that will give you ample time to hire your own attorney (if you so decide) and your attorney will have plenty of time to get "up to speed" on the case before the trial date.
I do feel that you should contact the insurance company and make them aware of the statements being made by the attorney assigned to you.
They are paying that attorney an hourly fee to work with you and they should be made aware of his "off the wall" ideas about permissive use and his intent to file and attempt to have your name removed from the action. It's entirely possible that suction opinions and actions may jeopardize your case and the insurance company may want to assign a different attorney to work with you.
I hope that you find this information to be of help.
Your feedback by rating my answer will be appreciated.
Sincerely,
Bennie
San Francisco Bay Area
