Legal Question in Personal Injury in California

Re: Settlement after Car Accident with injuries

You should get a second opinion. This is a common problem when there are serious injuries and inadequate coverage. The attorney should have exhausted and investigation of every other theory of liability with a view of uncovering other possible defendants and should have made a thorough evaluation of the assets and income of the defendants.

You can get most personal injury lawyers to give you a consultation on this type of matter for free.

Re: Settlement after Car Accident with injuries

You should discuss this matter further with your attorney. Your medical insurance can collect only that portion of the settlement which is reimbursement for medical expenses. There is also a maximum amount of the recovery that the insurance company can collect from you. Mr. Nelson mentioned your uninsured/ underinsured coverage. Your medical insurance should not be able to collect from any money you received from your underinsured coverage. The maximum amount that you could collect from your insurance would the the maximum coverage minus any amount that you received from the other driver. This applies only if you collect the policy limit from the other driver's insurance. The statute also requires that you obtain permission from your insurance.

Re: Settlement after Car Accident with injuries

I went through the same scenario as you so I can certainly sympathise. First, as the other answers have suggested, see if you can file a claim with your own auto insurance under your underinsured motorist coverage. If you carry more coverage under that policy than the responsible party's insurance limits ($60,000), then you should be able to collect the difference. If you don't know if you carry this coverage or what your limits are, call your insurance agent right away.

Second, you can negotiate the amount to be paid to your health insurance. Since you are only getting paid a percentage of what your claim is actually worth, the insurance company should also get paid only a percentage. Also, your health insurer may not be able to recover from you at all under ERISA, so check with your attorney on this issue. If nothing else, you should at least be able to negotiate the amount of the reimbursement.

Third, there may be issues with the attorneys fees you've agreed to pay. If this was a clear policy limits case then it might be unconscionable for your attorney to take 1/3 of your settlement. See if you can negotiate the fees with your attorney before you accept any settlement.

Good luck.

Sheila McPherson

Martin & McPherson

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Re: Settlement after Car Accident with injuries

The other driver's insurance company will not pay more than the policy limits. After all, that is what policy limits mean. The other driver paid for $60,000 worth of insurance and not $300,000, so $60,000 is all the insurer will kick in.

You have two other potential sources of payment. One is the driver of the other car, and the other is your own health insurance.

Technically you have no claim at all against the other driver's insurer, since you don't have a contract with them. You have a claim against the driver, and the insurer is obligated to cover his liability up to the policy limit. You can hold out for more if you want, but it would have to come from the driver's own pockets and if he doesn't have assets he won't be able to cover your bills. Even if he as assets, he might not agree to settle for an amount you are willing to accept and you would have to go through trial -- with all the costs that entails -- and hope to get a judgment high enough to justify the effort and expense. Your attorney can help you decide whether it makes sense to proceed this way.

The other option is your health insurance and, as you point out, it will require you to re-imburse it for any sums you recover from the driver or his insurance. You haven't said how much insurance you have, but you should keep in mind that any money you hand over to the insurer will be credited back to your policy limits. Thus, if you have $300,000 of coverage and get a $100,000 settlement after your insurer has already paid $150,000 in medical bills, the amount of benefits you have remaining will increase from $50,000 to $150,000. My point is that if your bills will exceed your policy limits it doesn't matter that you have to hand the settlement over to the insurer, since you will get it back later as your medical bills pile up. And if your bills won't exceed your policy limits then you will be fully covered either way, and will still have more insurance left over in case you need it again for some other health problem in the future.

Offhand I'm not sure how the law treats the portion of the settlement that your attorney keeps as his fee. I believe that your health insurance only requires you to turn over the portion you actually receive and not the full settlement amount. I could be wrong about this -- though I would be very surprised if I am -- and hopefully another LawGuru panelist will be able to address that issue.

Good luck to you and your son.

Re: Settlement after Car Accident with injuries

Unpleasant as reality is, the only way you will recover more than insurance policy limits is to sue and collect directly from the defendants. If they have nothing substantial, that is what you will get, nothing. They can file Bankruptcy if you get a big judgment. You need to do an asset check on the defendants. You need to make a demand on your own Uninsured/Underinsured insurance benefits.