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Roger
Roger, Attorney
Category: Personal Injury Law
Satisfied Customers: 27244
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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I am being sued for an auto accident that is probably my fault. I

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I am being sued for an auto accident that is probably my fault.
I am being sued for an auto accident that is probably my fault. Previously the plaintiff's attorney attempted to settle the case 4 times her medical cost (4x28K=112K) or my insurance limit (50k). She has only soft tissue/whiplash type of injury from medical records her lawyers sent to my insurance company. My insurance counter offered 18K and their lawyer countered (4X18K=72K). My insurance was only willing to settle a little over actual medical cost of around 19K. It has been a couple of months past. Just today Court server tried to serve me but I am not home. I will arrange to be served tomorrow. What do I do next after I get served? and what happens if this does to court and the verdict is over my policy limit? Would I be responsible for this? Can I sue my own insurance if this happen for insurance bad faith because my insurance had a chance to settle this within my policy limit and didn't? Also if we really go to court, how likely is the other party going to recover 4 times of their actual damages?
Submitted: 2 years ago.
Category: Personal Injury Law
Expert:  Roger replied 2 years ago.
Hi - my name is XXXXX XXXXX I'm a Personal Injury litigation attorney.

What do I do next after I get served?

Once you are served, you need to provide a copy of the complaint and summons to your insurance adjuster or your contact at the insurance company. Once that happens, the insurance company will hire you an attorney and the attorney will file a response to the complaint - called an answer. The answer will generally deny the allegations and then the discovery process will begin. Discovery is basically when the parties exchange information, testimony, evidence, proof, doctors reports, medical records, etc. Once discovery closes, the court will likely order settlement/mediation be attempted, and if that doesn't work, the case will go to trial.

What happens if this goes to court and the verdict is over my policy limit?

Your insurance company will only cover a judgment up to the limits of your policy. Thus, in the event that a judgment is entered against you for more than policy limits, you would be responsible for that amount.

Would I be responsible for this?

Yes, you would be responsible for any judgment amount over the policy limits. HOWEVER, this is very unlikely. First, any plaintiff's attorney is going to realize that the best he can likely do is to get policy limits because most people don't have thousands of dollars of property, assets, etc. to pay a judgment (unless someone were to be hit by Bill Gates or Donald Trump), so it is really futile to sue for more than policy limits. Thus, your attorney (hired by the insurance co.) will try to negotiate a settlement within policy limits to resolve the case.

Can I sue my own insurance if this happen for insurance bad faith because my insurance had a chance to settle this within my policy limit and didn't?

It is possible to sue an insurance company for bad faith, but it is hard to do. As long as the insurance company can prove that it had a defensible position and that it was justified in refusing to pay, it is not likely that a court would find the insurance company acted in bad faith. Acting in bad faith is refusing to negotiate or refusing to offer a settlement of any kind, etc. Based on your post, the insurance company is negotiating.

Also if we really go to court, how likely is the other party going to recover 4 times of their actual damages?

This is not likely unless there is proof as to why the person believes she is entitled to this amount. If there is no future surgery or medical treatment expected, no future damage or physical problem caused by this, no lost wages, no property damage, etc. to support the claim, it is not likely to happen.

I represent insurance companies for a living, and the insurance company and their/your lawyer knows that the plaintiff's attorney is going to be willing to take a decent offer to avoid time and expense that he will have to pay to put on this case, and most plaintiff's attorney's are willing to settle out quickly when the policy limits are low.

Thus, it is likely that your attorney will get the case settled within policy limits.
Customer: replied 2 years ago.

I was hoping you be the one to answer and glad you did. Thank you for breaking it down and answer carefully to each question that I have. This car accident happened over 15 months ago. In the discovery phase, since it been so long ago, would I be personally called to witness? Also I am no Bill Gate or Donald Trump, I do have hard earned saving around 50K, a rental house with loan still on it, and a house that both my dad, husband and I own. Should I be worried? I also have 401k and IRA accounts. Are these safe? Also it seems that the other party's attorney just pull the number 4 out of a hat. Majority of medical expenses they asked for has already incurred. They only asked a small amount for future treatment. It seems outragous to ask for 3 times the medical cost for pain and suffering. Can you comment on that. And is this the same thing as punative damage?

Expert:  Roger replied 2 years ago.
Yes, you'll certainly be called as a witness in the case. In fact, it is very likely that you will be deposed before trial.

In the event that a judgment were entered against you over and above the policy limits, it is possible that your assets could be exposed and seized to pay the judgment debt. However, as I said, the insurance attorney is going to try to settle the thing within policy limits. Also, if this girl has $18,000 in medical expenses, a judgment for even double or triple that would be a stretch - in my opinion. Thus, I really think you should be ok.

If the attorney can get the client's out-of-pocket expenses paid, a little for pain and suffering and a decent fee for a few phone calls and filing a complaint, that will likely make this go away. Your attorney is going to know how to handle this case, and chances are, he/she will know the plaintiff's attorney (will have had cases against him previously), so they'll know how to handle this.

Asking for 4 times the actual damages is not a request for punitive damages. Punitives are damages over and above compensatory damages (money to make the claimant whole again) to punish the defendant for some gross act of negligence or wrongdoing. Thus, you should not have to worry about that either.

As I said, the best thing you can do is get the paperwork you're served to your insurance company asap in order to get an attorney working for you on this matter.
Customer: replied 2 years ago.

thank you for your answer again. What does it mean that I will be "deposed" before trial? Also what does it say when initially they claim to have 28K and later back down to 18K in medical expenditures? And in referance to the insurance company had the chance to settle my claim within my policy limit, do I have any recourse if this goes to trial and I am personally liable for amount above and beyond my policy limit, though however unlikely it may be. One last thing, I like you to comment on how much of insurance would you recommend to carry in state of Texas.

Expert:  Roger replied 2 years ago.
Being deposed means that your deposition will be taken. Your deposition is being examined by the attorneys in the case before trial.

The reduction in the claimed expenses is probably what her total bills were ($28000) and then what she was out of pocket after her insurance company paid some.

As for a bad faith claim against the insurance company, it is certainly possible for you to sue if the insurance company doesn't settle within policy limits. However, if the insurance company can justify its refusal to pay, then it is not likely that a claim like this would be successful.

Most policies I see in my practice have limits of $100-$150k.
Roger, Attorney
Satisfied Customers: 27244
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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Customer: replied 2 years ago.

I got served today. In reading the complaint, it said that county x has jurisdiction because I live in county x, so it is filed in county x court. However I live in county y. Does this make any difference in where it is filed?

Expert:  Roger replied 2 years ago.
It can make a difference. You must be sued in your county of residence OR in the county where the accident occurred.

If the accident occurred in county "x", then venue is proper even if you don't live there. But, you can state in the answer that you don't live there as alleged.

However, if the accident didn't occur in county "x" and you don't live in county "x", then your attorney can file a motion to dismiss or to transfer venue. In that case, the lawsuit would be transferred to your home county or the county where the accident occurred - the choice of venue will be the plaintiff's.
Customer: replied 2 years ago.


This got me thinking and researching... I live in county y, accident happened in county z, but they filed in county x. Why would my attorney do a motion to dismiss versus to transfer venue? What would be the differences?

Expert:  Roger replied 2 years ago.
The appropriate motion is to file a "motion to dismiss, or in the alternative, to transfer venue". The motion will claim that venue is improper, and that the court should dismiss the case, or either transfer it to the appropriate venue.

The judge is not going to dismiss the case just because there was an error with the venue choice, but a motion to dismiss, or in the alternative, to transfer venue is the appropriate motion.
Customer: replied 2 years ago.

Okay... does this motion to dismiss or transfer venue happen before my attorney provide answer or as part of answer. Should I let my attorney know about this at the very start?

Expert:  Roger replied 2 years ago.
Yes, it would be filed before an answer is filed.

Yes, you let the attorney know about this during your first conversation.
Customer: replied 1 year ago.

It been another year now and I thought this is all a bad memory. But yesterday I received a letter from my lawyer from the other lawyer to depose me next week. Now over 2 years has passed sinced the car accident. Is this common? Should I be worried? Does this mean trial is next or can settlement still happen?

Expert:  Roger replied 1 year ago.
Hi -

Thanks for looking me up!

It is not uncommon for there to be lulls in the litigation - - and by "lulls", I mean a few months can pass at a time without action. Lawyers get busy on other cases, and put off things that aren't an immediate issue/concern. However, for a year to pass is a little extreme - - but it is not unheard of for sure.

But, it's not likely anything to worry about. It just means that your case is back on the front burner again - - it may be because the plaintiff in the case is on his/her attorney to get moving.

Also, there is still time for mediation, but it usually doesn't happen until after the main parties are involved. Thus, the fact that you haven't been deposed yet may be the reason no settlement talks have occurred.

IT is very likely that once you are deposed, a settlement/mediation conference will be scheduled.

Customer: replied 1 year ago.

Would I be a party in the settlement talk or is this one between the lawyers and the insurance company? Will this be ordered by judge or informal talks between the parties?

Expert:  Roger replied 1 year ago.
Yes, you would be involved in the settlement because it's your case - - however, the negotiations would be primarily handled by your attorney and the plaintiff's lawyer.

USUALLY, a court will order mediation before setting a case for trial. Thus, it is very likely that the judge will require mediation if the parties don't voluntarily agree to it.
Customer: replied 1 year ago.

In the deposition that is going to happen tomorrow, I know that plaintiff lawyer will be there. Will plaintiff be there too? When will plaintiff be depose by my lawyer happen? Can you give me a idea what happens in a deposition so I know what to expect tomorrow. My lawyer will meet me at plaintiff law office half hour before to brief me.

Expert:  Roger replied 1 year ago.

Hi - thanks for looking me up again! Also, sorry for the delay - - I was in court this morning.

 

As for your questions:

 

1. The Plaintiff probably will be there. It's not mandatory, BUT most attorneys want their client at the deposition to listen to what the other party has to say, provide the attorney with feedback about the testimony given, etc. Thus, you should expect to see the Plaintiff there.

 

2. Your attorney can depose the Plaintiff any time. Usually, the Plaintiff is the first person deposed because you want to lock down his/her story and build your case around/against what the Plaintiff says. However, that's not always the case, and the Plaintiff could be deposed later than others - - but that's not usually the case. That said, you should expect your attorney to depose the Plaintiff soon.

 

3. Depositions are pretty informal, BUT you will have to give your testimony under oath (just as if you were in court and in the witness stand). The Plaintiff's attorney will ask you questions about the case, what you know, etc., and that's really about it.

But, you do need to listen to the questions carefully and make sure you understand what is being asked before you answer - - because you'll be hung with the answers.

Customer: replied 1 year ago.


My dad will go with me tomorrow, both as moral support and also as a witness to what the plainiff said right after the accident and she didn't know he is related to me before she said such things that is support for contributory neglience because she admitted she saw me coming and panicked and failed to brake her car before hitting me. The car accident happened near his house and he walked around to see how she was doing and overhead such things before coming to my aid. Will he be allowed to be part of deposition, or will what he got to say can't be used?

Expert:  Roger replied 1 year ago.

Your dad can go with you, but he will not be allowed into the conference room where the deposition is taking place. Only the parties, the lawyers, court reporter and witness being deposed will be allowed there.

 

Thus, your dad would not be deposed or allowed to testify in the deposition. However, your father can testify at trial - - even if he's not deposed.

 

Also, you need to speak with your attorney about disclosing your dad as a witness so he can be called at trial. It may very well be that your dad is deposed later - - but it won't be tomorrow IF there's been no deposition subpoena issued to him, or no notice of deposition has been issued to him, it won't occur tomorrow.

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