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Can I accept the policy limit from the at fault insurance carrier and continue to sue the at fault driver in CA?

Los Angeles, CA |

My sister was in a tragic auto accident and the at fault insurance as offered the policy limit. However, it's barely enough to cover the medical bills. Can I accept the policy limit and then hire an attorney to sue the at fault driver? If so, can I do anything do prevent the at fault driver from hiding or transferring his assets? CA Attorneys Plz.

Attorney Answers 16


  1. You can, but, should contact and consult with a lawyer prior to settling any portion of the case.


  2. Tragically, no. When you accept the policy limits it will be in exchange for a full release of all claims.
    Please check your uninsured motorist coverage. It will convert to "underinsured" motorist coverage if the amount of the policy exceeds the amount of the 3rd party liability coverage.
    Time to consult with an attorney!


  3. If you accept the policy limit, it will surely contain a Release against the at fault driver which means you will no longer be able to sue him/her. Thus, if the policy limit is not enough, you may want to consider filing a lawsuit against the at fault driver. That way, when you prevail, you will get the policy limit and a judgment against the at fault driver for any amount not covered by the insurance. However, before filing suit, you should research whether the at fault driver has any assets; otherwise, litigation may be a waste of time. There are a variety of methods, databases, and resources that attorneys use to do research on an individual's assets. You should seek a consultation with a personal injury attorney before accepting any settlement from the insurance company. Most personal injuries are happy to offer free initial consultations.

    DISCLAIMER The answer given above serves for educational purposes only and is meant to provide general information for a basic understanding of the applicable law. Take notice that the answer above does not create an attorney-client relationship as this website is not intended to provide anyone with case-specific legal advice. Further take notice that any information on this site should not be used as a substitute for case-specific legal advice. Readers should also be aware that laws and their applications frequently change. As such, any information provided on this site is general in nature and may not apply to specific factual and legal situations. Contact a professional, competent attorney licensed to practice law in your jurisdiction to receive case-specific legal advice before making any important decisions regarding your legal issue.


  4. Usually, insurance companies will not settle (for their policy limits) unless the injured party signs a full release preventing said injured party from suing their insured.

    I am licensed to practice law in the State of California, and thus, my answers are based on California law. The laws of your jurisdiction may differ, and therefore, this answer is for informational and educational purposes only and is not to be considered as legal advice. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author.


  5. If you accept the policy limits you will likely be required to sign a release of claims. Once signed, you may not continue to pursue the negligent driver. However, if your sister had underinsured motorist coverage, you may be able to file a UIM claim with her carrier. I would consult with an attorney before proceeding. Best of luck.

    I am licensed in California, therefore, my answers are based on general prinicpals of law or California law, which may not be applicable in your jurisdiction. Answers posted to Avvo are for general information only. Do not conclusively rely on any information posted online when deciding what to do about your case. Every case depends is fact dependent, and responses are limited to and is based on the information you posted. No attorney-client relationship shall be created through the use reading of this response on Avvo. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information in this response.


  6. Only if you are not required to sign a Release.

    Call for a free consultation at 727-937-1400 or visit us on the Web at www.serviceandjustice.com.


  7. No. The insurance carrier is simply indemnifies the at fault driver. The settlement will be a full release of all claims against the driver. You have a lot of unanswered issues. Was the driver the owner of the car? Does your sister have Uninsured Motorist coverage? was the driver in the course and scope of employment or running an errand for someone? Was the driver convicted of a DUI.? Has an asset check been done on the driver? has the driver been asked to contribute funds? You will probably be best served by consulting with an attorney re: these issues. Also an attorney may be able to do something with the medical bills to increase the net recovery. Please feel free to contact our office in Long Beach 800-809-8848


  8. Probably not. The carrier won't pay you policy limits unless you agree so release their insured.


  9. Let me first say that I am very sorry that your family has experienced this unfortunate event. I wish your sister a speedy recovery.

    While I am not licensed in California, I can only tell you what your rights are here in Vegas.

    In Vegas, you ABSOLUTELY, 100% could accept the policy-limits and then sue the at-fault driver.

    The way you would accomplish this is to sign a covenant not to execute on that insurance policy only. Specifically, the following is an example of a covenant I use routinely.

    COVENANT NOT TO EXECUTE

    In consideration of the payment of Fifteen Thousand Dollars ($15,000.00), represented to be the liability policy limits of [INSERT INSURANCE COMPANY NAME], policy number [INSERT POLICY NUMBER], claim number [INSERT POLICY NUMBER], I, [INSERT YOUR SISTER'S NAME], do hereby promise, pledge and covenant for myself, my heirs, assigns and representatives, that I shall not at any time, nor shall anyone on my behalf, including [INSERT SISTER'S NAME], execute, levy, garnish or otherwise attempt to collect against the insurance policy, No. [INSERT POLICY], issued by [INSERT INSURANCE COMPANY] as a result of the accident which occurred on [INSERT ACCIDENT DATE], and [INSERT SISTER'S NAME] injuries sustained therein. I do however, expressly reserve the right to maintain an action against [DEFENDANT] for the purpose of obtaining any other liability insurance coverage, such as an excess or umbrella policy that may apply, or other assets,
    DATED this ____ day of March, 2013.
    ____________________________________
    [INSERT SISTER'S NAME]

    STATE OF NEVADA )
    ) ss.
    COUNTY OF CLARK )

    On this day of , 2013, before me, the undersigned, a Notary Public in and for said County and State, personally appeared [SISTER], to me known and acknowledged to me that she executed the foregoing COVENANT NOT TO EXECUTE as her free act and deed, for the consideration therein set forth on behalf of [SISTER].
    _____________________________________
    NOTARY PUBLIC

    This is something I routinely do in my practice in situations like this where the injuries greatly exceed the available coverage. You cannot do anything right now to prevent hiding or transferring assets, so I would suggest finding an attorney to file suit immediately.


  10. just a word of caution in case your sister tries to do the settlement without an attorney, whcih i dont recommend. If yrou sister has underinsured motorist coverage, she has to give 30-60 days notice of the policy limits offer to her own insurance company before signing any settlement papers or else she coudl be barred from the underinsured claim.

    The notice time gives yoru sistern's insuance time to decide if they want you to release the defendant or if they want to go after the defendant. IN that case her carrier woudl havee to give your sister the same amount as the insurance had offered and then they would go after the defendant for reimbursement. of course, if the defendant has little or no assets or income, her carrier is likely to waive 'subrogation' whcih means she could accept the settlement and then puruse the underinsured motorist claim.

    This can be a very comlex situation and having an attorney will help your sister maximize her recovery. With that said, most attorney woudl not take a fee from the policy limits offer since it was made before being retained so their fees should only be based on any additional recovery that get from your sister's underinsured motorist coverage. Of course you need to be sure the fee agreement clearly states that before signing anything.

    Good luck to your sister

    I am licensed to practice law only in Illinois. Any advice that I render is for general information purposes and does not create an attorney-client relationship. Also it is very important to keep in mind that all legal claims have statues of limitation to file that cannot be missed. A local attorney should be consulted to learn the time limits applicable to a particular claim.


  11. It appears that your sister may have a serious claim here and an attorney experienced in this type of claim would be interested in reviewing your documentation. I have personally dealt with other California claims such as that of your sister. Having proper representation can protect your sister’s cause of action. Your sister should speak to an attorney prior to accepting any settlement.

    View my website & give me a call for a FREE consultation if you are a California resident 877-427-2752 or you can email me at Michael@Kingofpersonalinjurylaw.com www.KingofPersonalInjuryLaw.com I am licensed in California only and my answers on Avvo assume California law. Answers provided by me are for general information only. They are not legal advice. Answers must not be relied upon. Legal advice must be based on the interplay between specific exact facts and the law. This forum does not allow for the discussion of that interplay. My answer to any specific question would likely be different if that interplay were explored during an attorney-client relationship. I provide legal advice during the course of an attorney-client relationship only. The exchange of information through this forum does not establish such a relationship. That relationship is established only by personal and direct consultation with me followed by the execution of a written attorney-client agreement signed by each of us. The communications on this website are not privileged or confidential and I assume no duty to anyone by my participation on Avvo or because I have answered or commented on a question. All legal proceedings involve deadlines and time limiting statutes. So that legal rights are not lost for failure to timely take appropriate action and because I do not provide legal advice in answer to any question, if you are an interested party you should promptly and personally consult with an attorney for legal advice. Also, see Avvo's terms and conditions of use, specifically item 9, incorporated by this reference


  12. No. If you accept the policy limit, the insurance company will require a release of all present and future claims.

    Nothing in this communication should be construed as creating an attorney client relationship. This is for informational purposes only. Attorney will take no action on your behalf unless and until a written retainer agreement is signed. There are strict time deadlines on filing claims and, as such, you are advised to consult with and retain an attorney immediately to file such claims timely or you will lose any right to recovery. Any testimonials or endorsements should not be construed as a guarantee, warranty or prediction of the outcome of your case.


  13. I doubt I can add anything to the answers of my colleagues, but I will try. I encourage you to consult with an attorney before you settle any claims. You mention it is your sister who was involved in the accident. Unless your claim is for wrongful death, I do not understand what type of claim you personally could make because of her accident. If that is the case, i.e., your claim is for her wrongful death, I am sorry for your loss. However, you mention your medical bills. Perhaps you were injured in the same accident.

    There are various and many issues that must be considered, such as all available insurance and whether there might be other 3rd party liability, in situations where damages exceed policy limits. You would do yourself a favor consulting with an attorney. An attorney can not only explore the issue you mention (the at-fault driver’s assets) but others you have not thought of such as a reduction in your medical bills and the possibility that your claim would not be dischargeable in bankruptcy.

    To assure you get the most from your settlement, simply refuse to execute any retainer agreement that does not put as much money in your pocket as you would get now if policy limits were paid given the fact they have been offered.

    I am licensed in California only and my answers on Avvo assume California law. Answers provided by me are for general information only. They are not legal advice. Answers must not be relied upon. Legal advice must be based on the interplay between specific exact facts and the law. This forum does not allow for the discussion of that interplay. My answer to any specific question would likely be different if that interplay were explored during an attorney-client relationship. I provide legal advice during the course of an attorney-client relationship only. The exchange of information through this forum does not establish such a relationship. That relationship is established only by personal and direct consultation with me followed by the execution of a written attorney-client agreement signed by each of us. The communications on this website are not privileged or confidential and I assume no duty to anyone by my participation on Avvo or because I have answered or commented on a question. All legal proceedings involve deadlines and time limiting statutes. So that legal rights are not lost for failure to timely take appropriate action and because I do not provide legal advice in answer to any question, if you are an interested party you should promptly and personally consult with an attorney for legal advice. Also, see Avvo's terms and conditions of use, specifically item 9, incorporated by this reference


  14. No, the insurance carrier will demand a full release for the policy limit payout. Your sister should consult with a personal injury attorney to see whether or not there are other insurance policies, such as uninsured motorist coverage, that may be able to provide her with additional benefits. If there is uninsured or underinsured motorist coverage available to your sister, she should not sign any release with the tortfeasor without first obtaining written approval from the UM carriers.

    Your sister should obtain needed medical care and treatment immediately and follow the doctor's advice. Do not give any statement to the adverse party or insurance company nor grant them access to any medical records. Photograph the injuries and the damage done to any property. Contact a personal injury attorney in your area as soon as possible so that you can protect your rights. You may also find it helpful to review the Legal Guides I have published on Avvo.com dealing with many of the issues you are now facing. The Guides can be accessed through my profile page on Avvo.com.

    Legal Disclaimer:

    If this information has been helpful, please indicate below.

    Mr. Lundeen is licensed to practice law in Florida and Vermont. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, could significantly change the reply and make it unsuitable. Mr. Lundeen strongly advises the questioner to confer with an attorney in your state in order to ensure proper advice is received.

    This ans. does not create an attorney/client relationship.


  15. Talk to a lawyer locally.

    The materials available at this web site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Howard Roitman, Esq. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

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