Legal Question in Personal Injury in New York

Re: Liability limits or more?

It sounds as if you have already discovered the restrictions of the No-Fault Insurance law in that you can only bring suit if you sustain "serious injury".

Have you sued anybody yet? If not, make sure you sue both the driver as well as the company s/he was working for (the LLC).

You do not have to settle for the 'policy', but many times it is the prudent thing to do. You are entitled to go to trial and have a jury or judge render a verdict, and if the verdict exceeds the policy limits, you will have a judgment that you will need to try to enforce.

The insurance company is contractually obligated to defend its insured, in this case the LLC. However, in the event you get a judgment that exceeds the policy limits, the insurance company is only liable up to the policy limit, and the LLC is liable for the deficiency balance that remains.

Therefore, as a practical matter, we typically settle for the policy when it appears that an individual or company has insufficient assets that would make collecting the judgment either impossible or impractical. Unfortunately it happens all the time. Moreover, most insurance companies won't tender the policy to you unless you agree to release their insured as well, so you end up in a precarious situation of having to decide if you want to go through the pains of a trial, where something could go wrong, and you could still not collect anything over and above the policy. Only you can make that decision with your lawyer.

Accepting the policy is a prudent thing to do if you yourself have an 'underinsured' provision in your own policy. In that instance, you would submit a claim to your own company charging that the defendant has insufficient insurance, and you have collected or about to collect their entire policy.

In rare instances, you may be able to convince the defendant's lawyer that in a case where the defendant is underinsured, that the defendant accept some responsibility for the accident by making a token contribution to settle the matter. In other words, you can propose that you would accept the policy if the defendant LLC also comes out of pocket $10,000 or some number that is reasonable but not impossible for the LLC to pay. There's no reason why you can't structure this last part into a payment plan so the LLC can stay in business and slowly pay off the amount it would owe.

If the LLC's lawyer is insistent the LLC has no other assets or cash, then tell them they should have no problem submitting to your lawyer a list of assets and liabilities. If they do and there appears to be nothing there, then take the policy. If they refuse, they might be hiding something, and you might play it out longer and see what develops.

Re: Liability limits or more?

While you have no obligation to settle for the policy limits. The insurance company will usually not offer anything other than their potential exposure which usually is the policy limits. In other words, if you want more you will likely need to go to trial and even if you get a verdict exceeding policy limits, collecting on such a verdict is often cumbersome, timely and expensive.

Should you like to discuss this or any other legal matter, you can e-mail me for more information about low cost face-to-face, on-line, or a telephone consultation with a lawyer in our office.

Re: Liability limits or more?

You are allowed to pursue recovery over the policy limits, however the LLC's insurance carrier is only obligated to pay up to the limits of the policy. You would then have to try to get the LLC to pay a settlement out of its own pockets or go to trial and obtain a judgment against the LLC to pursue its assets, over and above the policy. This is an area that my firm handles and I invite you to contact me with any other questions you may have on this matter at your convenience. Thank you.