Anyone know about personal liability law?

[BanzaiBonnie]

I'm writing you because this is a difficult time for a friend who was hit by a car while she was in a crosswalk in December 2010, in Portland, Oregon.

Out of the blue last week her attorney called and told her he had the final insurance settlement check for her. It was not much more than what her daughter received for a broken femur.

He explained that the sum and total from all insurance (hers AND the driver that hit her) has been used up. There is not any more insurance money to be had. Her attorney left it at that. It was shocking to my friend because she had not been informed that they were anywhere near a settlement. It was quite a “wham, bam, thank you maam, sort of scenario. 

Does anyone know if she cashes the check from the insurance company, does that only settle that part? Will she still be able to hold the driver who hit her personally responsible?

While my friend seems pretty fine to many people, she is not. As someone who used to talk with her several times a week, I understand how much she's lost. She is still fragile and should not be left to worry about how to make her way in the world with the brain injury she sustained.

At one time she was a camp cook in Alaska. She now has no sense of smell. She had also been a cartogrpher. Couldn't go back to that because she often can't even read. And she no longer has the ability to follow long, intellectual conversations.

Her attorney did not mention anything about the personal liability of the woman who hit her. He left her with the impression that there is no more to be done. Bullshit!

What I found online is : “If you don’t have enough insurance you become personally liable.” In general, does accepting the insurance company check absolve the other party of personal liability? Or, as I'm seeing it, just the settlement with the insurance liability.

[icymist]

1. Tell her not to cash that check and to call the Oregon Bar Association Referal Service...

Phone number should be in the phone book. Ask to be referd to a personal liability and insuance lawyer. Explain everything to the service and they will refer a lawyer best suited for that matter. Since you went through this service the thirty minute conference with that lawer is greatly discounted, something like $50 or $60. Before the appointment, write down evey question and issues you need to discuss ahead of time, that thirty minutes goes by fast. After the consultation you should have a clearer understanding of what direction you may want to persue. Good luck.

[BanzaiBonnie]

2. Thank you for that valuable information

I didn't know there was such a thing and I'm sure she didn't either.

I am encouraging her to seek further counsel, but what her attorney told her has her really discouraged. Of course, he's already got his 1/2 from the proceeds.

[icymist]

3. I knew about this service because I used to live with a labor lawyer.

He works for the Illinois State Supreme Court. You may want to add 'agressive young lawyer' to the above traits. Usually those that are fresh out of school are eager to accomplish something like this. Good luck with this.

[elleng]

4. Yes, there's one in every state,

they help to find 'specialists' and also take complaints against counsel for 'bad acting.'
She should have been informed at every step of the way about what was going on, and her attorney should be forced to return anything he's 'received,' imo. Of course the lawyer discouraged her; he didn't want to do any real work in her behalf. Further imo, he should be sanctioned by the State's Bar Association for seriously failing to represent her interests.
Good luck to her.

[MagickMuffin]

5. As everyone has stated DO NOT SIGN THE CHECK

If your friend needs to seek recourse signing the check will null her efforts.

She needs to continue to pursue this case. If she signs the check it means she accepts the final judgment.

She obviously had a lousy lawyer and he needs to be brought to the attention of the Board, as Ellen mentioned. He should have continued to involve her in HER CASE. He did not inform her that HE decided on a settlement without her knowledge. SHAME ON HIM!

When I was involved in a major car accident (Texas) and got hit from behind a couple of times, my lawyers informed me the whole way, and I was involved through the process. I was called into the office to either accept or decline the final settlement. I was told that if it went to trial I probably wouldn't receive any more benefits than the offer I had, and therefore I went ahead and agreed to the final settlement.

I still have symptoms to this day, but I have learned to live with it.

Good Luck to your Friend. I wish her the best. Thanks for caring for her interests, you are a good friend to have.

[Sanity Claws]

6. It's more than just a question of the check

First, the attorney may not settle the case without your permission. You make it sound as though he did. Let us know what happened.

Second, a check is issued only if you sign a release. Did you sign any documents when you got the check? If you signed a release of claims, then you cannot pursue anything further, regardless of whether or not you cashed the check.

Third, most cases do settle for insurance limits because the driver usually has no assets or not enough worth pursuing. Keep in mind that unless intentional acts were involved, the driver could bankrupt out of the claim.

I hope this helps.

[Celebration]

7. Thanks SC

That is how I see it.

It is very common for cases to settle for policy limits. I am guessing that at some point she signed something agreeing to that but obviously I am not sure. She does need to get legal advice.

This case is heartbreaking. She was probably incapacitated enough not to know what was going on, and her lawyer should have made sure that she knew exactly what she was getting, and when. To just suddenly have the money stop without knowing that ahead of time is just ridiculous.

[BlueIris]

8. I recommend a better attorney.

No professional or legal authority behind this, just my $.02.

I also recommend getting outside the Portland area. I think of the Salem area as the best possible place on the planet to find a personal injury attorney (seriously.) Those people are sharks. It may not help your friend at this point, but I think one of her big problems, besides the terrible health challenges, is lack of adequate (or ethical) legal representation.

I am very sorry about your friend's situation.

[davsand]

9. Generally speaking, an attorney is not allowed to "settle" unless the client approves it.

Last edited Fri Feb 24, 2012, 07:27 AM - Edit history (1)

Having said that, I am left wondering if the attorney was trying to explain to the client that the people who hit her have no further funds available on the policy (the policy cap had been hit) and it is his opinion that a civil suit against them is pointless (think blood out of a turnip...) That check may represent the balance of funds left in the policies, period.

The insurance company for either party is required only to meet the obligations of the policy/contract. If the max spending amount (cap) has been hit for both policies, the insurance companies are off the hook--they have lived up to their end of the deal. The only other option to recover anything would be a civil law suit, and if the other guys are dead broke with no assets and nothing to put a lien on there is not much chance of getting anything if they sue for damages. Yet again, the attorney is not the one to decide about filing a civil suit. They can decline to represent if a suit is filed, they can advise against filing, they can require payment up front, but they sure can't dictate the decision.

It is difficult enough to deal with the aftermath of a serious accident and the physical and emotional impact of it all. I am sorry to hear your friend is suffering. Peace to you all.



Laura

[SheilaT]

10. The amount of settlement a person can

receive is generally limited by the policy limits in place.

Since the accident, have medical bills been paid by insurance? That will eat into the final settlement. Does your friend know what the policy limits are, her own and the driver's? It's pretty much impossible, I believe, to get any more than those limits.

Trying to hold the driver personally responsible isn't really much of a possibility, unless the driver is very wealthy and therefore has the financial ability to pay more. Even then, I'm not sure your friend could get much of a settlement.

But having the attorney suddenly call with a "final settlement" is a bit disturbing. He ought to have been in touch at various times along the way, but a lot of attorneys are incredibly bad about doing this. At the very, very least your friend needs to make sure she absolutely understands what is covered, and why the amount offered is what it is. Get it in writing. Someone else needs to accompany her to the attorney's office.

Some of the other advice given, such as perhaps trying to get another attorney is going to be of limited usefulness, since a settlement has been reached. The attorney got the check, took his share, as already pointed out, and the remainder is now your friend's.

Too many people think that they can get a huge settlement after accidents like this, and the reality is, they often get very little beyond getting medical bills covered. I was for a while a paralegal for an attorney who handled small cases like this and the clients were lucky if they walked away with even a few hundred dollars above their medical bills being covered.