My husband was in an accident 2 days prior to filing bankruptcy, we had no intention of hiring a lawyer for the accident as the insurance company was paying his mediacl bills without fail. The bk hearing took place and was granted. My husband ended up losing his job 6 months later due to the accident after the discharge was signed. What are my rights now as I am the only income coming in and I do not make enought to support us. Do I have a time frame to wait before I can seek legal counsel or settle with the insurance company or is that not an option as i do not want legal ramifications for the bankruptcy.
Hello and thanks for asking your question. My name is XXXXX XXXXX X will be assisting you. Was the accident listed on your husband's bankruptcy petition so that the trustee was aware of the accident and a potential settlement in the future?
No it was not to my knowledge, as my lawyer didn't seemed to concerned about it.
I would now check with your lawyer who handled the BK filing. Generally, if the accident is disclosed, the trustee can decide whether to pursue during the BK proceeding. The potential personal injury claim would be considered an "asset" in the bankruptcy. Failure to disclose the potential cause of action might be considered a failure to disclose an asset. If so, the doctrine of judicial estoppel might prevent your husband from later bringing suit on that accident claim. Here is an article that explains this issue in full detail:
Based on what you said, there is the potential for the insurance company to raise judicial estoppel as an affirmative defense to your claim. However, please contact your BK attorney and ask his opinion, since he apparently suggested that the accident not be listed on husband's petition.
Please feel free to post follow up questions or comments if I can assist you further.
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