Guardian ad litem

Asked almost 2 years ago - San Jose, CA

Me and my spouse are plaintiffs in a PI lawsuit. My spouse has been rendered incompetent by accident caused by the defendant.Defendant has offered his policy limits which is very low for the loss we have incurred. Both our attorney and MSC judge are in agreement that we should settle for policy limits. MSC JUDGE and my attorneys threaten me that they will appoint a GAL on behalf of my spouse who is incompetent and the GAL will settle this case for us. I think it's unfair and we should get a fair jury trial. Please advice.

Attorney answers (5)

  1. Bradford Charles Brereton


    Contributor Level 12


    Lawyers agree

    Answered . There is no point to having a jury trial in a case if there is no money to be obtained after trial. The insurance company's obligation to pay a judgment will be limited to the amount of the policy limits in any event. Your attorney should have, and probably has, investigated the assets and earnings potential of the defendant. The insurance company is required to defend the case through trial unless it can offer all of its insurance policy benefits to settle prior to trial. In such cases, it is often a very good idea to settle for policy limits, even though your injuries are much greater because nothing can be obtained by going to trial. If the defendant has no assets, you will only get the policy limits anyway. The fact that the MSC judge has a strong opinion about the appropriateness of settlement suggests that your attorney has done his or her homework, and is probably giving reasonable advice. If you do not trust your attorney's opinion, you should get a second opinion

    In all cases it is advisable to consult an experienced attorney. Nothing stated herein is intended as legal advice... more
  2. Adrienne Patricia Allen

    Contributor Level 15


    Lawyers agree

    Answered . First, the GAL cannot settle the case on your behalf. It is something to consider however if both your attorneys and the Judge are recommending you settle for the low policy limits. Perhaps the defendant has no assets to actually collect on a judgmen you may receive? Maybe there are liability issues that make pursuing this to trial risky? You can try to find a personal injury attorney to fight this for you but it sounds like you are very close to a trial date. Seek a second opinion (or two). I have also added Personal Injury to your tags for more answers. Good luck.

    I am licensed in California only and my answers on Avvo assume California law. The above answer is for general... more
  3. David Alan Wolf

    Contributor Level 13


    Lawyers agree

    Answered . You have valid concerns; however, it is important to understand the the value of a case is a different concept that what can be practically collected on a case. If the Defendant has no assets, many attorneys will recommend a settlement for the policy limits. You can ask the attorney if an asset search was performed. Furthermore, you can discuss with the attorney the collectibility of a large judgment or verdict. Your attorney may be giving you solid advice. You can get a second opinion from another attorney assuming that your attorney has given you the relevant documents and information so that you can make an informed decision on this matter. Good luck.

  4. Robert Bruce Kopelson

    Contributor Level 20


    Lawyers agree

    Answered . If the deft has no assets, all you do by going to trial is put yourself and spouse through a stressful situation, and incur costs that will likely eat up whatever ins there is. Even if you get a million dollar judgment, it is only a piece of paper. It does not turn in to cash automatically. I have judgments over millions of dollars, that have been uncollectable. You have to start thinking practically which I know is difficult due to the emotions surrounding the serious injuries. Obviously I dont know about the details of your case. I only give this info in general, assuming that there are no collectible assets from the deft. I also assume there are no addl defts, or liable parties, and no underinsured motorist coverage available to you. If there are assets, more liable parties, addl ins, , the analysis changes.

    It will be difficult for you to switch attys right before trial. You can consult with others and provide the details so they can give specific answers.

  5. Marc Lazarus

    Contributor Level 14


    Lawyer agrees

    Answered . Ask your attorney if he/she has done an asset search to confirm the possibility of collecting a judgement in excess of the insurance policy limits. If there are sufficient assets to pursue which are not subject to protection from judgement in bankruptcy, then it makes sense to spend thousands of additional dollars and get a judgement. If, on the other hand, there are no assets or small assets which can be protected by bankruptcy, then you could be spending money to put on a trial that would otherwise used for the benefit of your injured wife. Also, I assume that there is no underinsured motorist coverage which would also afford your wife further benefits; however, if there is, then you must first exhaust the defendant's insurance policy before you are able to pursue an underinsured motorist claim.

    Marc Lazarus

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