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Yes, he can still file the lawsuit but he is only entitled to one recovery. He can't recover the damages more than once.
On what is he basing his claims for medical bills?
The suit indicates he has suffered mental anguish.
Did he witness whatever they did?
No he did not.......
Are you representing yourself?
I'm consulting with an attorney but he usually does not do defense.......one of the other parents in the suit has hired an attorney and he told her that he could not file a civil suit for the damages.
He can file a civil suit, no question about that. I'm not aware of anything that would allow him to recove mental anguish in a case like this.
It appears from the wording of the suit that he is trying to be awarded the bulk of the damages from my husband and I. The other two mothers are single and or not property owners. However we are property owners. I filed a claim with my homeowners but they will not pay because it was intentional by an insured over 13 yrs of age.
If all of the boys are at fault then it would be joint and several liability which means you all are responsible to him and then you can recover whatever extra you pay from the others.
However, you will want to do some research or hire a lawyer to determine whether he can even sue for mental anguish etc. in a case like this.
There is a law review article on the topic at http://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=5768&context=lalrev
But that's over ten years old so you would want to see how it has changed in the meantime
So if I'm understanding you, if say within a year we pay what is ordered to us, then he could revisit the lawsuit and ask the judge to order us to pay the remaining and we would in turn have to file a civil suit against the other two parties who failed to pay their part of the judgement
Kind of correct. You would want to cross claim against the others in this lawsuit.
Can we request that our judgement be in pro rata?
It will almost certainly be joint and several under these facts. You can request it but the judgment is going to be joint and several just like it was in the criminal case.
okay thank you!!
Again, I've never seen a case where the law allowed someone to recover for mental anguish caused by property damage that they didn't even witness.
You may want to pick up a book on legal research like the one at this link and look into this a little more.
That provides me some relief... I've been making payments on the restitution. The damages he claimed were almost $26,000.00. The civil lawsuit is in excess of $50,000.00.
I think he is going to have a problem recovering. You may want to contact your insurance company and see if they will provide a defense since he is claiming negligent infliction of emotional distress. He pled it that way to get the insurance company to cover it and they should also provide a lawyer for you because it was pled that way.
Okay, I will look into that......thank you so much for your help!!
You're very welcome and I do wish you the best.
Be sure and come back to this thread and let me know what happens.
I do recall the attorney saying that I consulted with telling me that the attorney worded it as intentional and not negligent that the homeowners would not be responsible?? Does this sound correct??
If he said it was intentional then insurance wouldn't cover it but you still want to make the request. What that tells me is that they don't think you'll try and get a lawyer.
Okay I did file a claim and the adjustor contacted me last week and told me it was not covered and they were not obligated to provide legal defense since it was not a covered claim. I will keep you updated on the outcome. How do I return to this thread?
Once you issue your rating it will change formats. When I see it do that I will send another message and then just don't reply and keep the email. You can follow the link in it later.
Thank you so much for your advice!!
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