Colorado Auto Accident - Attorney's actions -correct or incorrect? Has our attorney screwed up royally or not?

Asked 10 months ago - Lakewood, CO

My wife was rear ended at a major intersection while at a red light behind other vehicles. Driver was driving his wife's separately owned and separately insured car. Most of his family assets are in wife's name. Driver is successful businessman. Our Med costs exceed $180k so far, with 3 surgeries to date. 4th surgery will push total over $200. My wife is now uninsurable and COBRA ends 10/31.
Driver admitted responsibility. Said he was distracted by cell phone.
Wife's insurer has offered policy limits ($100k). Driver has offered small amount of cash.
Our attorney did not request Verizon records before they became unavailable, nor did he ever add the Driver's wife to the lawsuit. Statute of limitations is long past and trial has not yet occurred.

Any way to add wife to suit, or ?????????

Attorney answers (9)

  1. Stephen Clark Harkess

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    Answered . The problem with adding the wife to the lawsuit is that you would have to show that she did something wrong (you can't just sue people because they have more money - they actually have to have harmed you). In order to do this, you would have to have more facts than you outline above. Simply owning a car that is involved in an accident does not make you personally responsible for the damage. Letting your husband drive your car, without more, is not a wrongful act.

    If it was negligent to entrust the car to her husband, then there might be a claim against the wife. For instance, if he had no driver's license, or a history of bad driving or drunk driving which might have been known to his wife, then she might be responsible for negligently entrusting her car to such a man. If that is not the case, then it is not clear why the wife would be a proper Defendant.

    If there are facts to support such a claim, there is likely nothing that can be done to add the wife to the case after the statute of limitation period has passed. If that actually happened, you may want to speak with a malpractice attorney to see if you can pursue a claim against your attorney. However, you need more facts than you have put in your post before such a claim is likely.

    As for the Verizon records, what effect would obtaining them have? You say the driver admits responsibility and has stated that he was distracted by his phone. What additional useful information would the cell phone records provide? Again, you need to add more facts in order to show that your lawyer did anything wrong.

    You can reach Harkess & Salter LLC at (303) 531-5380 or info@Harkess-Salter.com. Stephen Harkess is an attorney... more
  2. Daniel Nelson Deasy

    Contributor Level 20

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    Answered . I agree with Mr. Harkess -- I don't think you have given me enough facts for me to conclude the wife has culpability. Sit down and talk to your attorney about your concerns with the way things are going.

    In no way am I offering you legal advice, and in no way has my comment created an attorney-client relationship.... more
  3. Jeffrey Larkin Wertz

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    Contributor Level 11

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    Answered . Colorado recognizes the Family Car Doctrine which may provide an avenue to sue the wife as a head of household. Sounds like your bigger problem is the passage of time and expiration of the statute of limitations for naming the wife as a defendant.

    I do not agree that the Verizon records are unavailable. get a lawyer who knows how to get them.

    It may have been malpractice for your attorney to give up on pursuing the car's owner under vicarious liability theory [Family Car Doctrine] and possible independent claims such as negligent entrustment.

  4. Jeffrey Mark Adams

    Contributor Level 20

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    Answered . The answer is maybe. None of us can say without a review of the actual file. Perhaps have the file reviewed by local counsel. First step may be a simple conversation with your current attorney. All the best c

    Personal injury cases only; I'm good at it; you be the Judge! All information provided is for informational and... more
  5. Richard Waldron Bryans Jr.

    Contributor Level 16

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    Answered . A party may amend his Complaint at any time by leave of court, and the Rules provide that leave shall be freely given when justice so requires. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. The biggest if is whether or not there is a sound basis for a claim against the wife (negligent entrustment). It would be within the court's discretion whether or not to permit joinder and amendment of the complaint. Nothing ventured, nothing gained.

    The information provided in this answer is only general shall not be deemed to create an attorney-client relationship.
  6. Tatiana Kadetskaya

    Contributor Level 19

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    Answered . More information is necessary. Hope your lawyer has a low fee.

  7. James Todd Tenge

    Pro

    Contributor Level 10

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    Answered . In addition to what the other attorneys have indicated, what may be the bigger issue is missing possible source(s) of insurance coverage. Since the husband was driving, any insured cars he owns may offer additional insurance coverage on top of wife's coverage on the involved auto. Further, he may have a business policy which could also provide additional insurance coverage. Finally, make sure your attorney has determined whether or not they have an umbrella policy, which would be associated with their home. Most umbrella policies cover excess damages arising from an auto accident and are sold in minimums of $1M. Even if the wife owns the home, the policy will likely cover all those who are "resident relatives" (i.e. relatives who live in the home with the wife).

  8. Christian K. Lassen II

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    Contributor Level 20

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    Answered . Best to retain a lawyer with a low contingency fee, less than 30%, so the lawyer's fee doesn't eat up your recovery.

  9. Charles J. Ware

    Pro

    Contributor Level 5

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    Answered . Ask your lawyer to petition the court to add the wife --- for good cause, if any. Usually the odds are not good for court approval in these circumstances, but it should be done anyway. What do you have to lose by trying?

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