I am being sued for wrongful death with BAC .04 in calif. is my ERISA safe

Asked over 1 year ago - Orange, CA

fatal car accident, a 14 year old boy in the middle of the street at 9pm. I didn't see him and hit him. He died the next morning.

Attorney answers (9)

  1. Tanya Marie Bachand

    Contributor Level 15

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    Answered . Do you have insurance to cover this? Even if you do, you should consult with a private civil defense attorney immediately regarding how you can protect your assets from a judgment against you in a wrongful death case. This lawyer is in addition to any lawyer your insurance company hires for you, and will work with that lawyer in defending you. If you have significant assets to protect, this is a must-do step for you.

    This is general advice and does not establish an attorney-client relationship.
  2. Steven Curtis Gnau

    Pro

    Contributor Level 11

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    Answered . As a car accident lawyer, I'm typically on the other side of this type of case so while I wont give you advice, I will tell you what I would do for the boy's family. The child's family has a 'wrongful death' action against you and I would expect you to turn their claim over to your car insurance company. If covered, the insurance company will investigate the claim, defend you, and seek to protect you by attempting to settle the claim. If settled, the claim will be resolved by a 'release' whereby once the settlement is concluded, your assets are no longer exposed for collection including your ERISA. However, because the claim against you is a large one, I would investigate the ability to collect against you in addition to your auto insurance policy because there are circumstances where the policy limit of insurance is insufficient but the collection of additional funds over the policy is economically viable. I would also see if you have additional protections available such as taking the lid off of your policy or seeking the addition of Cumis counsel. If you had collectible assets in excess of your policy, I would likely seek a stipulated judgment from you that required you to make payments over time and in excess of your policy limit in order to satisfy the terms of the stipulated judgment. If convicted, I would also look into seeking restitution from you through the criminal process. If a settlement is not achieved and the wrongful death action results in a judgment against you, first indemnification would become payable from your insurer without your release. Then your assets would be exposed to collection proceedings. In order to perform collection, you could be brought back into court for a judgment debtor's examination wherein you would have to divulge all of your assets, holdings, interest, and wages. With this information, I would seek writs to collect and garnish your assets and wages, including your ERISA holdings. Upon the service of the writ or levy against your ERISA account, you could seek court intervention to prevent the execution of the writ and levy. At that time, a judge would determine if your ERISA is safe. ERISA affords statutory protection against this type of collection and you are likely protected so long as the account qualifies as a ERISA Plan account. However, there are exceptions as the ERISA protections are not iron clad. See: http://www.nolo.com/legal-encyclopedia/can-judg...
    Nonetheless, there would remain exposure for collection. Just because the ERISA account cannot be pierced by a CA writ does not mean the res is not exposed. Once you withdraw money from the ERISA account and place it outside of the ERISA account it is exposed to collection and attachment.
    Aside from your question, you mention that the boy was in the middle of the street at 9pm. In the wrongful death action, you have the same comparative fault defenses that you would have in a motor vehicle negligence action. Your auto insured should be investigating this portion of the loss as party of their duty to investigate.

    As stated above, this is an incomplete answer but an attempt to provide a cursory overview of a subject that... more
  3. Richard Andrew Harting

    Pro

    Contributor Level 18

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    Answered . turn this over to your insurance. Generally the plaintiff will accept the limits of your insurance policy as settlement. For future re-evaluate your assets and make sure you carry sufficient insurance

  4. Bruce M Squire

    Contributor Level 12

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    Answered . STOP !! DON'T SAY ANOTHER WORD. You could face serious criminal charges. Prosecutors and civil lawyers may look for statements you make on the Internet to use against you. You are wise to seek advice, but you should really do that in a setting where the attorney-client privilege will apply.

    This answer is for general education purposes only. It does not create an attorney-client relationship nor is it... more
  5. Jeffrey Mark Adams

    Contributor Level 20

    5

    Lawyers agree

    Answered . Agree with Attorney Banchard.

    Personal injury cases only; I'm good at it; you be the Judge! All information provided is for informational and... more
  6. David Ian Schoen

    Pro

    Contributor Level 20

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    Answered . Your ERISA plan should be safe. But make sure your insurance company has been notified.

  7. Christian K. Lassen II

    Pro

    Contributor Level 20

    5

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    Answered . Yes

  8. Robert Andrew Michael Burns

    Contributor Level 17

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    Answered . You've got wonderful comments and advice from my colleagues. I don't want you to post your answers here, but it's important to know where a prosecution is on this, what your speed and the posted speed were, the lighting and weather conditions, the actions and visibility of the boy, and any intoxication of yours beyond this small amount of alcohol. I'm sorry, as no matter how you fare in the suit, you have to live with the death and the litigation. Best wishes to you and the boy's family.

    PS: There was a same/similar post by you yesterday or so.

  9. Brett Miles Bressler

    Contributor Level 7

    1

    Lawyer agrees

    Answered . Yes. Your insurance company has the obligation to defend and indemnify you.

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