Basically the plaintiffs want my policy limit now but if my insurance company doesn't meet it, they will ask for more at trial, exposing my personal assets. My insurance company does not believe the case is worth that much and is willing to go to trial. I have an insurance company appointed lawyer who has been excellent and is in agreement with the insurance company. My fear is that if we go to trial, I may lose more money than my maximum policy limits.
What are my options? Is there a statute in CA that would require my insurance company to pay policy limits to keep me from losing personal assets?
This happens more than you might think.
You should put in writing that you request the insurer to settle your case for the policy limits.
It is best if you have "independent" counsel to associate into the case and protect your interests above your policy limit.
The insurance company appointed lawyer may be good---but, his first loyalty is likely to be the insurance company and not you.
If the trial results in an excess verdict, you can likely assign your rights against the insurance company to the plaintiff on return for an agreement not to execute against your personal assets. Again, you will require experienced counsel to pull this off.
Best of luck!
If your insurance company does not "tender" the policy limits and later on the case goes to trial, exposing you to personal liability, then you will have a "bad faith" action against the company. Many times plaintiff's lawyers will "open up" the policy when the insurance carrier refuses to pay up the policy limits.
WRITE to your defense lawyer telling him/her that you are nervous that your assets will be exposed if there is a judgment in excess of the policy limits and asking the insurance to pay the limit if you feel that this could happen. They will then be put on notice of the fact that you are asking them NOT to expose your assets by tendering the limits of your policy.
Most of the time, the carrier will reconsider and pay up the limits especially if plaintiff's attorney has a made a "policy and time limit" demand. They will not risk it, but...insurance companies do the strangest things!!!
There is no statute to force them to pay your policy limits, but if you feel they are putting their interest in paying as little as possible ahead of your interest in avoiding a judgment that dips into your personal assets, then there is a statute that might help - Civil Code 2860. This codifies a case from many years back that gave insured defendants like you the right to hire a second lawyer (at your insurer's expense) to look over their actions and make sure that they are not planning to roll the dice with your money. Have a potential "excess" judgment against you is not alone enough to invoke this statute, but there may be additional facts in your case that tilt the scales.
If the plaintiff has made a demand within your policy limits and your carrier refuses to pay - they have a big problem if the plaintiff hits over the policy. Almost certainly they will pay the excess rather than risk your subsequent bad-faith claim. If they don't pay the plaintiff attorney will almost certainly offer you a deal to assign the plaintiff your bad-faith claim in exchange for a non-collection agreement. If it all goes south and there are no deals - call me. 800-809-8848
Your options have been outlined by my colleagues. If you do not have substantial coverage and feel exposed then you must follow the advice given here or get a CUMIS counsel paid by the insurance company if they refuse to tender the policy. Talk to an experienced PI lawyer in your city or nearby. Do not worry about the cost. The first initial consultation is almost always free. Best of luck.
Manuel A. Juarez, Esq.
Do not sign any legal documents without your attorney reviewing them first.
Wow, I find myself reading this question and thinking about all the bad things insurance companies do to their insured. The fact that you are concerned about this and likely having anxiety and losing sleep does not surprise me. Before I became Plaintiff's attorney I worked for a large insurance company in their staff counsel office and then was an insurance defense panel attorney.
I can tell you this from personal experience. There is a fair share of Defense Attorneys that are appointed to represent you by the insurance company but do not think of you as their client, even though you are. They are always being paid by the insurance company either by billing them or when staff counsel, directly. Someone else wrote an answer that indicated you should write your insurance company and advise them that you are concerned about personal exposure in this lawsuit.
I just wish I had more facts when answering these questions. I can tell you that most of the time when the insurance company had the chance to pay the policy limits before and during the lawsuit but elects not to, they will nearly always pick up the tab if the case results in a verdict for more than your policy. The one instance where they may not pick up the tab is when there is a coverage issue such as punitive damages for a drunk driver that caused an accident and then punitive damages are awarded. In this event, you would always have the right to request what is referred to as CUMIS Counsel, which is an attorney employed by a defendant in a lawsuit when there is an insurance policy supposedly covering the claim, but there is a conflict of interest between the insurance company and the insured defendant.
I wish you luck and hope it turns out alright for you.
Ben - www.tryklaw.com
I highly recommend that you get a second opinion regarding your policy limits. Consult another attorney. It will probably not cost too much. Dont forget that the insurance company's interests are not necessarily the same as yours. And, dont forget that the attorney is being paid by the insurance company. Good luck
Look up some insurance attorneys in your area and ask them if they would be willing to serve as "Cumis-counsel."
You are the only one who will lose if the plaintiff obtains a judgment in excess of your policy limits. If your insurance company is so sure they will win, ask them to give you a "golden letter," indicating that if they lose and you are exposed, they will cover all amounts in excess of your policy. Otherwise, I suggest if you are worried about being exposed, you should pressure your insurance company to settle the case right away for limits while they still are being offered that by plaintiffs.
I have served as "Cumis-counsel" many times for defendants here in Las Vegas. I'd be happy to give you a referral for an attorney who'd be willing to do this for no charge that is licensed in California.
I wrote a legal guide on bad faith, which you can access from the link provided below. You are right to send a certified mail letter to your insurer demanding they pay out the policy limits and release you from liability or that you will sue them for bad faith insurance litigation.
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