Asked about 1 year ago - Portland, ORFlag
I have been named in a car accident lawsuit. I rear ended someone on the freeway in stop and go traffic. The police came but I was not cited. However the other driver called an ambulance. Two years after the accident they filed suit and now two years later it is going to trial. The insurance attorney deposed the plaintiff, however I have never been asked for a statement nor have I been deposed by either side. Is it normal to not have any information from my side? The trial goes to court tomorrow. I have read the plaintiff's statement and there are several blatant inaccuracies. The location of the accident is not correct as well as several other details. Should I have hired my own attorney? I am feeling very anxious and unprepared.
Speaking from over here on the opposite coast and doing primarily plaintiff personal injury cases for more years than I want to admit, the insurance defense counsel nearly always provides a vigorous defense if not an over-the-top defense. Insurance companies would much rather pay their attorneys to defend cases like yours than pay much more than nuisance value to the injured party.
When I represent injured plaintiffs, I do not always take a deposition of the defendant for many reasons, some of which include that I nearly always know what they are going to say, I do not want to run up my client's bill, and in the off chance that the case will go to trial I can frequently cross examine and impeach a civil defendant with answers to interrogatories and contradictions on the stand.
One of the only instances in which you need be concerned is if the potential for a verdict exceeds your coverage limit, in which case your insurance company is only "on the hook" up to the amount of your bodily injury provision limits. Hopefully this is an issue that has been discussed earlier.
Make sure you pull your insurance company's attorney aside and make them listen to your concerns before court. With respect to the blatant inaccuracies such as accident location, the attorney may well be saving his best ammunition for trial: How is the guy going to look to the court if he testifies under oath as to the wrong location of the accident or says other stupid stuff under oath?
The only thing you need to worry about if at all is if there is a verdict larger than your policy limits. Now what is not clear to me if if this is going to a jury trial or mandatory arbitration. Small cases in Oregon for demands less then $50,000.00 get sent to mandatory arbitration. So if this is still in the arbitration stage you probably don't have anything to worry about and the arbitration proceeding is very informal and can be appealed so that there can be a jury trial later if the either party is not happy with the arbitration result.
If it is in the trial court stage and then you want to know how bad are the injuries to the other driver (based on the driver's medical records, not some inflated amount his attorney put in the complaint) and talk to the insurance defense attorney about what they think this type of injury is worth based on actual jury trial verdicts- there are companies that compile the awards from actual jury trials that we attorneys can review to get an idea about our case's value.
The next question is how much is your insurance policy coverage? If the expected valued of the injury is more than covered by your available insurance coverage, then sit back and just let the case go forward. If there is some possibility that you could have a judgment against you for more than your policy limits, then the next question you need to ask the insurance defense attorney is whether or not the other side has made a demand for policy limits. Because if they did demand policy limits and the case goes forward and the verdict is for more than your policy limits, what normally happens is that the attorney for the plaintiff will contact you and ask you to assigned to them your claim against your insurance company for their negligence in not settling the case for the policy limits when they had the chance. This gets you off the hook and the Plaintiff's attorney then sues your insurance company for the excess money.
If this is confusing to you or you are not sure you will be able to ask the defense attorney the right questions, by all means go and talk to a Personal Injury attorney of your choosing. It shouldn't cost you more than the fee for a one hour consultation and they should be able to call the defense attorney for you, ask these right questions and interpret the responses so you know where you stand.
In terms of your deposition - it doesn't surprise me that you weren't called. Because the accident was a rear end accident there is probably no dispute over liability there there isn't much to ask you about - they have already agreed to these facts. They took the Plaintiff's deposition because they wanted to find out about the Plaintiff's injuries, how the injuries effected the Plaintiff's life, if the Plaintiff had other unrelated medical issues, and maybe what the Plaintiff was doing before the accident to see if there may have been some other factor that made the Plaintiff somewhat responsible for the situation.
The plaintiff's statement was most likely a pre-trial statement written by the Plaintiff's attorney to give the fact finder - either the arbitrator or a judge - a brief intro to the case. It really isn't a sworn statement so it's not evidence. The Judge or arbitrator knows that this is from the attorney not the plaintiff and will overlook the errors. It doesn't go to the jury as evidence. It wouldn't hurt to clue the insurance defense attorney into these errors but don't worry too much about it.
As a rule of thumb, if the Plaintiff didn't stay over night in the hospital, did minimal care like with a chiropractor or physical therapist for approximately 6 months, never needed any type of surgery, and has returned to work full time, this is probably not a big deal. This would be a typical soft tissue whiplash injury that is very hard for a Plaintiff's attorney to prove has any long term permanent effects. It can happen but it is rare.
Speak to your attorney about your concerns and ask him to explain his view on this. I don't think it is necessarily the case that you should have hired your own attorney. In general, the attorney hired by the insurance company should have the same interests and motivation to successfully defend the case as you. (There are instances where there may be a conflict of interest in representing the interrest of the insured and the insurer, and the insurance company in such instances may be required to retain a separate attorney to represent the insured's interests (such attorney is called Cumis counsel), but I don't know enough about your case to know whether this applies to your case. For the most part, the interests sufficiently coincide that you don't need to worry about retaining your own attorney.
Although I understand your anxiousness about not being deposed, the party that is disadvantaged by this is your opponent and not you. A deposition of a party is noticed by the opposing party, not your own attorney. One of the primary purposes of a deposition is to get the deponent's testimony on the record, so you know what the deponent will say going into the trial. Discovery rules allow a party to be informed regarding the opposing party's position so there won't be any surprises at trial. Because your opponent has neglected to to depose you, they will go to trial not knowing what you will say. At the trial you can bring out what you know, including facts which contradict your opponent. It will be your own attorney who will be asking direct questions at trial to bring out your testimony. (The opposing attorney will have a chace to cross-examine you.) Make sure you work with your attorney to prepare for your trial testimony. Ask him to give you advice regarding the questions that will be asked, and the best way to respond without deviating from the truth. Good luck.
I am surprised that plaintiff's counsel did not depose you, but I am guessing he or she was saving money, believing that a rearend accident is clear, and therefore, unnecessary for deposition. You will have the opportunity at trial to discuss the inconsistencies with the statements made by the plaintiff, and the insurance company's counsel will defend you in this matter.
Steven A. Schwartz
JOEL H. SCHWARTZ, P.C.
One Washington Mall, 16th floor
Boston, MA 02108
(617) 250-2072 fax
You should speak directly with your defense attorney. I am sure he must have contacted you about appearing at the trial. He also should have briefed you on what to expect at the Courthouse. It is a little late now to consider hiring your own attorney. You should have a face-to-face meeting with your defense attorney to see whether or not you have adequate coverage for the claimed injuries. I wish you luck at trial.
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.
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