Mom being sued, should she lawyer up? Car accident...
October 27, 2010 8:40 PM   Subscribe

Does mom need to get a lawyer? Car accident stuff inside...

Last year, mom was in a car accident. Some guy went right on red and smashed into her passenger side. She was not hurt, not even shaken up that much, but her car was totaled by the insurance company. She got the check and bought a replacement. All's well, no injury, no problem. Until...

Last week she got served. She's being sued by the passenger in the other car, the drivers wife. I called the insurance company, they said this is "fairly typical" and they would handle it. OK, no problem.

But she got some letters in the mail today that rang a tiny alarm bell in my head. One is an affidavit that that she has no other liability insurance other than the 100/300 she has with the car insurance, the other informs her of the firm handling the suit. What set off the alarm is the line in the second letter,
"If you so desire, you may have your personal attorney associate their office with the above named attorneys, at your own expense, in defense of this action."
I called the insurance company and asked "What? They hit her!" The claims person said my mom could be found partially responsible.

I knew the other driver and passenger had been transported to the hospital, but the cop on scene said they both walked into the ambulance. The pictures I took at the scene show that no airbags deployed.

I honestly don't see how my mom could be held liable at all, but...
Should she get a lawyer?
The only attorney she has ever hired is 500 miles away and only handled her home sale and her will. I've never needed an attorney either, except when I closed on my house.
posted by Marky to Law & Government (17 answers total) 2 users marked this as a favorite
I am not a lawyer, and this is not legal advice (seriously... I'm not. And this isn't. You should talk to an attorney in your state.)

Different states handle insurance issues in different ways. Some states require the insurance company to hire two separate attorneys, one that represents the insured (your mom's) interests, and one that represents their (your mom's insurance company's) interests. This is fairly rare. Lots of other states allow for joint representation (an attorney represents both you and your mom's insurance company's interests). If there is ever a conflict between the two interests (the other side offers a settlement below your limit but the insurance company doesn't want to take it, for example), they are generally required to disclose this to you, etc. If the conflict is serious enough, they may have to withdraw.

Anyway, without knowing any more (what state you are in, etc.), that line is probably some boilerplate to cover themselves for this scenario, in the event you would later go back and accuse the insurance company's lawyer of not representing you well.

As with all things, you should talk to a lawyer and make sure this is the case, but if the suit appears to be one for damages that will be well below your limits, you probably don't need to worry about hiring your own attorney.
posted by JakeWalker at 8:57 PM on October 27, 2010 [1 favorite]

Regular mail? What kind of court is she being sued in, small claims? Something else? I'm no lawyer or anything, and you don't say where you're located, but these just sound like scare-grams to me, to try to get her to want to settle or accept liability or something. Since we don't know where you are, we can't guess how ridiculous a right-on-red-running sideswipe might be. But it's pretty ridiculous sounding to me, and I'd want to represent myself just to say "are you kidding?"
posted by rhizome at 10:09 PM on October 27, 2010

Response by poster: Sorry, I left a few things out. All the letters so far are from mom's insurance company. We're in NY.
posted by Marky at 10:22 PM on October 27, 2010

If the other side has lawyered up, then yes, I strongly recommend she get a lawyer, if for no other reason that your mom's attorney will know what tricks the plaintiff's attorney will likely try. In the meantime she should absolutely not admit to anything and also be aware that the insurance company may be recording everything she says.
posted by IndigoRain at 11:39 PM on October 27, 2010

and by tricks I meant tactics.
posted by IndigoRain at 11:41 PM on October 27, 2010

For the most part, the insurance company's position is the same as your mom's in this suit, but the bottom line is that the insurance company's lawyer is paid by the insurance company and represents them. If your mom can afford it, I would recommend that she hire her own attorney to ensure that her interest's are fully protected.
posted by amro at 3:53 AM on October 28, 2010

Ugh, interests, not interest's.
posted by amro at 3:54 AM on October 28, 2010

>that line is probably some boilerplate to cover themselves for this scenario

Every insurance company will send a similar letter in every case, not "to cover themselves" but to make sure that the insured knows that she has a right (but is not required) to have her own attorney involved.

In the vast majority of cases, it is not needed. And she can exercise that option at any time. The one thing that she should do is make sure that the lawyer the company hires to defend her sends her copies of every report he or she sends to the insurance company, so that she can keep track of what is going on.
posted by megatherium at 4:27 AM on October 28, 2010 [1 favorite]

As amro and megatherium said, the insurance company wants/needs your mom to know that she does not have to let the insurance company lawyer(s) handle the entire case for her.

By the way, it helps a lot in legal questions to know what U.S. state things happened in.
posted by exogenous at 4:52 AM on October 28, 2010

Yeah. I personally (not a lawyer but I proof stuff for attorneys, usually contracts and correspondence,) wouldn't get a lawyer at this stage, but would research local attorneys in case a conflict does come up. My mom (an attorney now, law student at the time) was hit from behind by a sleepy driver; she got those kinds of notices, too.

The local bar association and Legal Aid, depending on your income and what the local group is into, are good places to find attorneys. I do not like the guys on billboards/bus benches and would be averse to hiring one personally.
posted by SMPA at 5:58 AM on October 28, 2010

I was in a very similar situation a few years ago. Had a traffic accident [in my case I struck a pedestrian who was dressed all in black on a dark rainy night; he was not seriously injured], then got served a year or so later at my house.

I got the same followup letters your mom did. In my case, I did not get my own lawyer as the amount the plaintiff was asking was well under my policy limits. The risk, however, was there that the jury would find his story compelling and award him an amount exceeding my policy limits.

We were both found by the jury to be responsible, me a little more than him, IIRC. Damages were awarded, he to receive whatever my percentage of fault was found to be. However, the jury found he had suffered no permanent injury, which reduced the damage award to $0. As it happened, the amount he would have received had the jury found permanent injury was the same as the insurance company's final settlement offer before the case went to trial.

This is in MN.
posted by chazlarson at 6:51 AM on October 28, 2010

Best answer: As soemone who works for a large insurance company in their house counsel office but is not an attorney (IT, but previously legal secretary), all initial letters to our clients, whom we represent at no cost to them as the result of them being in an accident and having an insurance policy through the company I work for, say that they're free to hire their own attorneys. Why? Because a long time ago, some law firm hired by an insurance company lost a case and the guy said "if I had known I could have hired attorneys of my own choice with my own money, I would have". So now we all tell everyone feel free to pay for your own attorney.

As for your outrage as to being sued, well, join the other 8000 people we're defending right now. Your insurance company can't just walk into court and tell the judge "no, that's not how it happened, dismiss this case right now". Stop being outraged at them, they've hired attorneys to appear on your mom's behalf and right now there's nothing more to do than let them go through discovery. After that, maybe they can move to dismiss on some procedural grounds or even for summary judgment. Laws and practices of law will vary from jurisdiction to jurisdiction and you haven't even told us what state you're in, let alone what county.

Every lawsuit here is for $1,000,000+. No one sues for $10k. The good news is if the case even makes it to trial (less than 10% do), we've got a stip on over 90% of the cases agreeing to cap damages awards at the policy. More good news is you cannot lose your primary residence in NYS in these kinds of civil actions. Even more good news is that even if you've got the world's smallest policy (25/50/25 by law in NYS) no one actually wants to garnish your wages for the rest of your life because plaintiff attorneys work on contingency and it's not worth their time and effort and most consider it unethical to ruins someone life since they all know it's a game to get insurance company money. No one here can ever think of a case where plaintiffs actually went beyond policy limits.

We do have a handful of cases, less than 2% I'd guess, where our clients have personal attorneys. We send them copies of all our letters, all discovery and all motions. Aside from that, they don't do much, they just get paid to make sure that we do our job right. Feel free to hire another attorney out of your own pocket to second chair the insurance company guys.

Lastly, I'd like to address the issue of whose interest is represented. If you've got house counsel, you have insurance company employees as your attorneys. Your mom is the client and they represent her interests, which, for the most part are also the insurance company's. But if there's a potential for even the appearance of a conflict of interest, the case must be sent outside counsel. I'm sure whatever state you're living in has similar rules, the insurance industry is highly regulated. There are various pieces of information that we are not allowed to disclose to the claim handlers. Our computer systems cannot be integrated to share documents to prevent accidental disclosure and we cannot share office buildings. We must be completely seperate physically and technologically from the carrier.

The advice here telling you to lawyer up seems to be missing the point of the question. The question is not do you need an attorney. Yes, you do. You're a defendant in a civil case that will (if where ever you are is anything like where I am) require dozens of appearances, lengthy discovery, the scheduling of independent medical exams and depositions. You do not know how to do these things. You should not proceed pro se. But the good news is, you already have a free lawyer. Should you pay for a second?

That's for you to decide. We never tell people what to do. It's their decision. We explain the risks, the likely outcomes and tell them they need to decide. You need to do the same. And really, this is a conversation your mom should have with the lawyers she was already assigned.
posted by Brian Puccio at 8:19 AM on October 28, 2010 [7 favorites]

Best answer: Not a lawyer/Not Legal advice.

1. YES, you should get representation. Typically, the lawyers for your insurance company are sufficient to subrogate on your behalf to extract damages from the other insurance company. But, in defending your mom from liability, she should have her own lawyer. Preferably someone who specializes in insurance litigation. The cost to get someone on retainer just in case is fairly low. (Obviously, the price goes up for an actual trial defense, but one hopes it doesn't get that far.)

2. New York State is messed up. Basically, there is exactly ONE* case in which a driver in a collision is 0% at fault: When that driver is directly rear-ended. Since the accident was not a rear-end collision, there is a significant chance that your mother will be found at fault by some percentage. Yes, this is stupid! Yes, this is unfair! But, yes, it's the law in New York State. This is why talking with a lawyer is really important - the law is not what you'd expect it to be here.

* (This only applies to wholly accidental collisions. A driver driving "recklessly", or intentionally causing a collision makes things different. Yet another reason to have a good lawyer sort this all out.)
posted by Citrus at 10:12 AM on October 28, 2010

Best answer: Just to expound on what Citrus is mentioning, yes, under NY law (just like under chazlarson mentioned happened to him/her in MN) each party will be found to be of a certain percent liable. Say someone is damaged to the tune of $100,000 and your mom is 10% liable, your mom's carrier would fork over $10k. The attorneys you've been assigned are for liability defense, they are not for subrogation purposes. I cannot image why they'd assign a subrogation attorney to you. They should have an attorney/firm handling the subrogation of the case if the other vehicle's carrier isn't willing to admit fault and fork over the money to them in the event that you got your mom's car fixed through her carrier as opposed to claiming against the other driver's carrier.

While you can be found not at fault due to being hit in the rear (which is hopefully a case that your mom's attorneys will win on a motion for summary judgment on the issue of liability) it's not a 100%. Another way to not be found liable is when a collision with a deer is involved. (My carrier doesn't even ding you for it in your premiums in NYS.)

But that isn't really applicable down here and is intended for upstate NY.

(Hey Citrus, small world, I live in Long Beach, right next door to you!)
posted by Brian Puccio at 10:34 AM on October 28, 2010

Best answer: The advice here telling you to lawyer up seems to be missing the point of the question. The question is not do you need an attorney. Yes, you do. You're a defendant in a civil case that will (if where ever you are is anything like where I am) require dozens of appearances, lengthy discovery, the scheduling of independent medical exams and depositions. You do not know how to do these things. You should not proceed pro se. But the good news is, you already have a free lawyer. Should you pay for a second?

Again, you do not have a free lawyer. The insurance company has a lawyer and the insurance companies interests probably align with yours. If you hire a lawyer it is unlikely that there will be any need for him to take an active role, but he will make sure you are protected in the unlikely event that it's necessary.

The above is not legal advice and I am not your lawyer, but I am an insurance defense attorney.
posted by amro at 11:43 AM on October 28, 2010

>Again, you do not have a free lawyer

Perhaps a matter of semantics. Brian's point was that she already has a lawyer. She is free to hire a second.

She has already paid for this lawyer by paying her premium. That is one of the policy benefits.

Citrus said
>Typically, the lawyers for your insurance company are sufficient to subrogate on your behalf to extract damages from the other insurance company.

This is difficult to understand, but it appears to be simply wrong. The lawyer that has been hired is defending her from claims for damages made against her by the other driver. The OP's inquiry and the other responses have nothing to do with any claim by her against the other driver. OP told us she was not hurt.
posted by megatherium at 4:35 PM on October 29, 2010

@megatherium: My point was that if/when you're on the side of the legal action that's trying to extract damages from the other guy, it's fine to let the insurance company do it. But, in this case, when you're on the defensive side, I believe that you're better off having your own separate counsel to make sure that you're protected. I was doing a compare-and-contrast.

Sorry if I was hard to understand.
posted by Citrus at 6:25 AM on November 1, 2010

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