Someone is trying to sue us?
August 22, 2017 5:45 PM Subscribe
An insurance company we used to have has been desperately trying to get ahold of us. Now I know why: Somebody is trying to sue me.
Almost three years ago my wife rear-ended somebody in a minor fender bender. Since then we've moved twice, changed insurance companies, and filed for Chapter 13 bankruptcy. I got an E-mail saying the person my wife rear-ended three years ago has retained an attorney and is trying to serve a lawsuit before September 15, when the statute of limitations is up. According to the E-mail it seems the person is trying to get more money out of my former insurance company and is filing the lawsuit to buy time for the settlement.
My options, according to the E-mail, are to allow my former insurance company to release my address for service or to instruct them to accept service on my behalf. The address they have on file is not my current address. It seems like I also have one more option, which is to wait a month and see if they can figure out where I am without my help. The bankruptcy I mentioned means it wouldn't be difficult to find me if they searched public records.
What should I do? Give them my current address? Let them attempt to serve my old address? Have my insurance company accept service? Or wait it out? I really don't know what getting served would open me up to, if anything, do I need a lawyer, or is this all on my insurance company to handle? I acknowledge you're not my lawyer and nothing in this discussion is Legal Advice.
Almost three years ago my wife rear-ended somebody in a minor fender bender. Since then we've moved twice, changed insurance companies, and filed for Chapter 13 bankruptcy. I got an E-mail saying the person my wife rear-ended three years ago has retained an attorney and is trying to serve a lawsuit before September 15, when the statute of limitations is up. According to the E-mail it seems the person is trying to get more money out of my former insurance company and is filing the lawsuit to buy time for the settlement.
My options, according to the E-mail, are to allow my former insurance company to release my address for service or to instruct them to accept service on my behalf. The address they have on file is not my current address. It seems like I also have one more option, which is to wait a month and see if they can figure out where I am without my help. The bankruptcy I mentioned means it wouldn't be difficult to find me if they searched public records.
What should I do? Give them my current address? Let them attempt to serve my old address? Have my insurance company accept service? Or wait it out? I really don't know what getting served would open me up to, if anything, do I need a lawyer, or is this all on my insurance company to handle? I acknowledge you're not my lawyer and nothing in this discussion is Legal Advice.
This post was deleted for the following reason: poster's request -- taz
Definitely speak to an attorney. You can be held liable for far more than whatever your insurance limits were, in which case you're on the hook for the excess. Most of the time people don't bother and just settle for policy limits because it's a lot harder to collect from you than it is from an insurance company, but that's a strategic decision, not any legal requirement.
Your bankruptcy filing also can have some effect on this, which is why I strongly recommend getting legal advice before deciding upon a course of action.
posted by wierdo at 6:22 PM on August 22, 2017 [3 favorites]
Your bankruptcy filing also can have some effect on this, which is why I strongly recommend getting legal advice before deciding upon a course of action.
posted by wierdo at 6:22 PM on August 22, 2017 [3 favorites]
Let your insurance company accept service on your behalf. Ask you bankruptcy attorney how your Chapter 13 may or may not affect this. Then, talk to your insurance company about paying for your attorney. Get your own to at least participate in settlement talks. Your interest is for any settlement to not exceed your coverage.
posted by AugustWest at 6:25 PM on August 22, 2017 [2 favorites]
posted by AugustWest at 6:25 PM on August 22, 2017 [2 favorites]
Slidell, your comparison isn't as convincing as you might think it is. I find myself wondering how serious these hypothetical charges are...
But Mr. Encyclopedia, although I sympathize with the impulse toward the "let them try to find you" option, I kind of suspect that plausible deniability is key in that plan, and that you may have utterly blown it by posting about your intent to do so here in public.
posted by Krawczak at 6:29 PM on August 22, 2017 [9 favorites]
But Mr. Encyclopedia, although I sympathize with the impulse toward the "let them try to find you" option, I kind of suspect that plausible deniability is key in that plan, and that you may have utterly blown it by posting about your intent to do so here in public.
posted by Krawczak at 6:29 PM on August 22, 2017 [9 favorites]
If this is so important, why are they only sending an email? I briefly Googled and don't see any indication that you must respond to this. Email is generally considered a very poor form of notification.
If it were me, I'd do nothing. If it's a legit lawsuit, let them figure out how to legally serve you. If they actually do so, I'd speak to a lawyer about whether your bankruptcy would protect you.
Slidell, people who try to be uber-ethical usually just get stepped on. You can bet that if there even is a lawyer on the other end of this, their concern is extracting as much money as they can for their client while staying within the confines of the law. They have no interest in your welfare and you should accordingly have interest in protecting yourself.
posted by nirblegee at 6:54 PM on August 22, 2017 [10 favorites]
If it were me, I'd do nothing. If it's a legit lawsuit, let them figure out how to legally serve you. If they actually do so, I'd speak to a lawyer about whether your bankruptcy would protect you.
Slidell, people who try to be uber-ethical usually just get stepped on. You can bet that if there even is a lawyer on the other end of this, their concern is extracting as much money as they can for their client while staying within the confines of the law. They have no interest in your welfare and you should accordingly have interest in protecting yourself.
posted by nirblegee at 6:54 PM on August 22, 2017 [10 favorites]
This process is called subrogation. Party A sustained property damage allegedly due to the negligence of Party B. Insurance Co A paid money to fix PtyA's vehicle. InsCo A can now sue PtyB using the rights of Pty A. If PtyB had liability insurance at the time of the accident they will pay for PtyB's defense attorney, per the insurance contract. This is the case even if PtyB is no longer a customer. If there is a settlement, or verdict, where PtyA is awarded damages, then InsCo B will pay on behalf of PtyB, up to the policy limits. I would accept service, notify your previous insurance carrier, and ask what the policy limits were. If the awarded amount is under the limit you have nothing to worry about.
HOWEVER, you must fully cooperate in the case and attend any depositions, arbitrations, or trials. If you fail to cooperate, you're insurance company could deny coverage based on non-cooperation and then you'd be on the hook.
posted by blairsyprofane at 6:58 PM on August 22, 2017 [1 favorite]
HOWEVER, you must fully cooperate in the case and attend any depositions, arbitrations, or trials. If you fail to cooperate, you're insurance company could deny coverage based on non-cooperation and then you'd be on the hook.
posted by blairsyprofane at 6:58 PM on August 22, 2017 [1 favorite]
BTW, not a lawyer and this is not legal advice. It is just an opinion.
posted by blairsyprofane at 7:01 PM on August 22, 2017 [1 favorite]
posted by blairsyprofane at 7:01 PM on August 22, 2017 [1 favorite]
You need legal advice. From a lawyer. Not from your insurance company.
posted by theora55 at 7:51 PM on August 22, 2017 [7 favorites]
posted by theora55 at 7:51 PM on August 22, 2017 [7 favorites]
Timeliness matters in these things; that's why we have these statutes of limitations. If this person is only trying to do this now, I don't see any moral reason that you have to make things easier for them, if they made things more difficult for you by waiting this long. You have enough time here to contact an attorney and get actual professional advice about what to do, and you are not a bad person for failing to immediately do the thing which is most helpful to the opposing party in a potential lawsuit. It's one thing to actively obstruct service, it's another thing to make them do the work that was created by all this information being three years out of date. But you need better info here about what those potential decisions may bring as far as consequences, and that's why you need to talk to a professional.
posted by Sequence at 8:13 PM on August 22, 2017 [11 favorites]
posted by Sequence at 8:13 PM on August 22, 2017 [11 favorites]
As long as the party can show that they have made diligent efforts to serve, it is very easy in most courts to get an extension on the deadline, so dodging service may end up requiring repeated efforts by you over many months. Or they could give up, who knows. But if the case is strong enough that the other party has an attorney, at least someone with legal training probably thinks the claim is worth something. This suggests that they won't go away quietly. I would either talk to an attorney, or talk to your insurance company about your liability potential under the claim and what the party is asKing for.
posted by skewed at 8:38 PM on August 22, 2017 [1 favorite]
posted by skewed at 8:38 PM on August 22, 2017 [1 favorite]
I'll just throw this out there: Do you have any proof that the person contacting you / your insurance company is actually the person your wife rear-ended? That sounds like an interesting scam, dig through old records of car accidents and look for vulnerable perpetrators.
Who is the email from?
posted by Hatashran at 9:43 PM on August 22, 2017 [10 favorites]
Who is the email from?
posted by Hatashran at 9:43 PM on August 22, 2017 [10 favorites]
I'm a lawyer who used to do insurance defense work. In terms of a situation like yours, I'd have been the attorney hired by your insurance company to defend you. (No, what you're describing does not appear to be a subrogation claim.) That's an example illustration, obviously. I'm not your lawyer, I'm probably not licensed in any jurisdiction relevant to your situation, and I can't give you legal advice—but for the conversational purpose of AskMe, I'm happy to share a bit of insight if it might be helpful.
It's not uncommon for lawsuits to pop up in the last few weeks or days before a statute of limitations expires. It's frustrating, I know. It's not ideal. Parties and witnesses have moved on with their lives, memories have faded, evidence has been lost. It's not how law should be practiced. But it's not uncommon.
In instances where an insured defendant was nowhere to be found—or was clearly dodging service—plaintiffs' attorneys had a few options in jurisdictions where I've practiced. First and most obviously, they could request more time. As long as the complaint was filed before the statute of limitations expired, plaintiffs could take their time completing service. If necessary, they could ask the court to extend their allowed time. Most courts will allow the first extension without batting an eyelash. Once you get into the third extension, you'd better have a good reason and be able to credibly tell the court, "I expect I'll be able to complete service if given another X days."
They could ask the court to allow "alternative service." Usually service needs to be completed in a particular way, but if that isn't working and you can tell the court honestly, "Listen, this guy has been dodging our constable but he's on Facebook and he's reading messages and we can confirm it's really him," then you'll get some latitude. Some jurisdictions require that alternative service include certain steps like mailing with a return receipt requested, or publishing in a newspaper. Once alternative service has been completed, the person has been joined as a party—and now, you're free to obtain a default judgment against him.
In order to get permission for alternative service, you usually need to file an affidavit from the process server attesting to the efforts made. ("I confirmed that he lived at the address by doing X and Y. I visited on multiple occasions at different times of day, including an evening and a weekend.") But in the insurance context, instead of pursuing alternative service and seeking a default judgment, sometimes experienced attorneys will have their process server return the papers non est inventus—basically stating that the defendant is nowhere to be found in the court's jurisdiction, and therefore allowing the plaintiff to sue the insurance company directly.
Several people have mentioned that liability can exceed insurance coverage. In theory, that's true. In practice, it's rare. What's common are settlements. Big, juicy cases are commonly referred to—by plaintiffs' attorneys, mind you—as "policy-limit cases," meaning that they expect to settle for whatever the policy limit is. If it's a $1 million policy, then they expect to get $1 million, after which they move on to their next case (read: paycheck). They do not generally waste additional years trying to extract blood from the pebble that is your average insured person. And while there are exceptions to this generalization, those exceptions don't typically involve "minor fender benders."
I don't know nearly enough about your situation to give you advice. I don't know whether any of what I've written above is true or common in your jurisdiction, and I won't pretend to know whether it's in your best interest to reach out to your insurance company tomorrow, or to lay low for the next month. I'm not purporting to answer any of your explicit questions, but I hope some of this information from my experience might help you to formulate some questions for when you do sit down with an attorney licensed in your jurisdiction. Good luck.
posted by cribcage at 9:44 PM on August 22, 2017 [13 favorites]
It's not uncommon for lawsuits to pop up in the last few weeks or days before a statute of limitations expires. It's frustrating, I know. It's not ideal. Parties and witnesses have moved on with their lives, memories have faded, evidence has been lost. It's not how law should be practiced. But it's not uncommon.
In instances where an insured defendant was nowhere to be found—or was clearly dodging service—plaintiffs' attorneys had a few options in jurisdictions where I've practiced. First and most obviously, they could request more time. As long as the complaint was filed before the statute of limitations expired, plaintiffs could take their time completing service. If necessary, they could ask the court to extend their allowed time. Most courts will allow the first extension without batting an eyelash. Once you get into the third extension, you'd better have a good reason and be able to credibly tell the court, "I expect I'll be able to complete service if given another X days."
They could ask the court to allow "alternative service." Usually service needs to be completed in a particular way, but if that isn't working and you can tell the court honestly, "Listen, this guy has been dodging our constable but he's on Facebook and he's reading messages and we can confirm it's really him," then you'll get some latitude. Some jurisdictions require that alternative service include certain steps like mailing with a return receipt requested, or publishing in a newspaper. Once alternative service has been completed, the person has been joined as a party—and now, you're free to obtain a default judgment against him.
In order to get permission for alternative service, you usually need to file an affidavit from the process server attesting to the efforts made. ("I confirmed that he lived at the address by doing X and Y. I visited on multiple occasions at different times of day, including an evening and a weekend.") But in the insurance context, instead of pursuing alternative service and seeking a default judgment, sometimes experienced attorneys will have their process server return the papers non est inventus—basically stating that the defendant is nowhere to be found in the court's jurisdiction, and therefore allowing the plaintiff to sue the insurance company directly.
Several people have mentioned that liability can exceed insurance coverage. In theory, that's true. In practice, it's rare. What's common are settlements. Big, juicy cases are commonly referred to—by plaintiffs' attorneys, mind you—as "policy-limit cases," meaning that they expect to settle for whatever the policy limit is. If it's a $1 million policy, then they expect to get $1 million, after which they move on to their next case (read: paycheck). They do not generally waste additional years trying to extract blood from the pebble that is your average insured person. And while there are exceptions to this generalization, those exceptions don't typically involve "minor fender benders."
I don't know nearly enough about your situation to give you advice. I don't know whether any of what I've written above is true or common in your jurisdiction, and I won't pretend to know whether it's in your best interest to reach out to your insurance company tomorrow, or to lay low for the next month. I'm not purporting to answer any of your explicit questions, but I hope some of this information from my experience might help you to formulate some questions for when you do sit down with an attorney licensed in your jurisdiction. Good luck.
posted by cribcage at 9:44 PM on August 22, 2017 [13 favorites]
I was in a car accident where I needed to hire an attorney, I had injuries. I then used them again for advice when a drunk driver totaled my parked car. I'm wracking my brain trying to figure out what the claim might be here.
I agree you need an attorney because I can't think why this is happening to you personally vs why the insurance company hasn't already settled?
If you ignore this, waaaay down the line a judgement may be entered against you, someone above mentioned fraud - this happened to me! A predatory debt recovery agency filed a case against me based on fraudulent credit activity I was unaware of. It was super messy. And expensive to clean up! I ignored the lawsuit because I was young/stupid/did not owe any money so thought I was fine.
Get a lawyer. There are crazy loopholes in the law and businesses dedicated to exploiting these loopholes. Get a lawyer. Maybe it's a scam email, maybe someone is going to lie and hope you ignore this so they can win a default judgement and then pursue that. Do not ignore is my advice now that I am older.
posted by jbenben at 10:13 PM on August 22, 2017
I agree you need an attorney because I can't think why this is happening to you personally vs why the insurance company hasn't already settled?
If you ignore this, waaaay down the line a judgement may be entered against you, someone above mentioned fraud - this happened to me! A predatory debt recovery agency filed a case against me based on fraudulent credit activity I was unaware of. It was super messy. And expensive to clean up! I ignored the lawsuit because I was young/stupid/did not owe any money so thought I was fine.
Get a lawyer. There are crazy loopholes in the law and businesses dedicated to exploiting these loopholes. Get a lawyer. Maybe it's a scam email, maybe someone is going to lie and hope you ignore this so they can win a default judgement and then pursue that. Do not ignore is my advice now that I am older.
posted by jbenben at 10:13 PM on August 22, 2017
This is important. When you are sued, the insurance company which provided coverage at the time of the accident normally has an obligation to hire an attorney to represent and defend you, and to pay any settlement or judgment - but only if you cooperate with the company and its attorney. If you do not, the company may be within its rights to say that it has no obligation to either defend you or pay any money that is found to be owing.
posted by megatherium at 8:46 AM on August 23, 2017 [3 favorites]
posted by megatherium at 8:46 AM on August 23, 2017 [3 favorites]
There are several reasons for a claim to be filed a long time after an accident. It may be that the symptoms of the injury don't appear for some time. It may be that the medical treatment is prolonged. Etc.
posted by SemiSalt at 11:06 AM on August 23, 2017
posted by SemiSalt at 11:06 AM on August 23, 2017
If it's a legit lawsuit, let them figure out how to legally serve you.
Yeah, I would send a nice email to the insurance company authorizing them to release your (old) address and let this be the people trying to beat the clock's problem.
posted by corb at 12:26 PM on August 23, 2017
Yeah, I would send a nice email to the insurance company authorizing them to release your (old) address and let this be the people trying to beat the clock's problem.
posted by corb at 12:26 PM on August 23, 2017
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posted by slidell at 6:12 PM on August 22, 2017 [6 favorites]