Legal Question in Personal Injury in California
Accident injuries, no progress on claim in two years!
Somone in my family was hit by a car by a ''sleeping'' driver who drove
off the highway in his father--name removed--car. There was not
medical insurance and the insurance adjuster was very nasty when asked
to help pay for surgery. We paid for surgery out of pocket. The
insurance company said their client was 100% at fault.
The insurance company offered 35k to settle. Less than half the
expenses. They stated the coverage was 35k/70k per person/
accident, and the policy went in effect 2 hours before the accident! Did
they write a retroactive policy to protect another? How can this be
proved?
It is now over two years later, my family member--name removed--
second lawyer wants settlement for 35k. For getting nothing extra, the
lawyer will take 40% . My family member who has been run over, seems
to be about to be run over again. My relative would have been much
better off accepting the insurance company--name removed--offer.
It is over two years from the accident. My relative has said he would give
me power of attorney to negotiate and get some progress, but he
doesn't know if there is a case filed. My relative feels intimidated and
threatened.
How can we get a judgement?
3 Answers from Attorneys
Re: Accident injuries, no progress on claim in two years!
Sorry about the loss your family member sustained. Although you did not mention, but I suspect that a lawsuit has already been filed and the other side is offering their policy limits. Hence your lawyer's advice to settle as well as 40% fee. It would be proper if (1) thorough asset check has been done on the defendant and there are no such assets to go after. (2) Do you know if the father of defendant was negligent in entrusting his car to his son? If so, father's auto as well as home owner's insurance may provide additional coverage.
Also, if your family member, or anyone in the same household carried underinsured motorist coverage you may have extra source of funds. I would also take a closer look at the insurance broker who sold the policy 2 hours before the accident. It sounds a little too coincidental.
You can accept the policy limits and if they have assets, you can ask them to supplement the settlement out of their pocket.
Lastly, 35/70 is kind of weird amount, which I have never seen in California. Is this in CA? If so, which carrier has issued the policy?
Re: Accident injuries, no progress on claim in two years!
It seems unreasonable that this lawyer would demand 40% of what the insurance company already offered you. You had better -demand- -in writing- that this lawyer provide you with a file-stamped copy of the complaint and a written report as to the current status of the case. Better yet, ask him for a copy of your file and take it to another attorney to be looked at. The statute of limitations is usually two years. If the lawyer did not file a complaint with the court within that time, you would have as little as one year to file a case for legal malpractice which would be paid by the lawyer's malpractice insurance carrier. Your file belongs to you, and if there is a moment's hesitation on the part of your attorney in allowing you access to it, call the State Bar of California (calbar.ca.gov). The State Bar can also initiate a "fee arbitration" in the event you dispute your attorney's fee. Your review of the file by another attorney should include what steps, if any, were taken to investigate the assets of the other driver and the suspicious circumstances of the insurance policy being issued 2 hours prior. Your attorney should have, at a minimum, taken the deposition of the other driver and the plaintiff should have been there.
Re: Accident injuries, no progress on claim in two years!
If no lawsuit has been filed, there is no case left after two years, except for property damage to the car. IF that is the situation, you probably have a malpractice claim against the attorney.
If there is a case filed, get the file and contact another attorney ASAP to review it. If the 35k offer is at or near the limit of the defendant's insurance policy, you will have a problem getting any more offered or collected. If it is not, then a higher offer is possible with new counsel and prompt action to get discovery done and the matter headed toward trial. Contact me if interested in doing so. You also may have a claim on your own uninsured motorist insurance, but time limits apply there too.
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