In a wrongful death suit,the insurance agrees to pay policy limits before trial, can I refuse it and still go to trial?

Asked about 4 years ago - Galesburg, IL

Wrongful death and survivors suit. The insurance company decided to pay just the policy amount. My lawyer is telling me we can't continue the suit and must take the settlement. Now I find out that Medicare and the lawyer are the only ones getting any of the settlement. I feel like I've been duped. Why do I have to settle for the policy amount when the lawyer was asking way more than that. Can I just refuse to sign any paperwork and say that I want to go to trial?

Attorney answers (3)

  1. Alan James Brinkmeier

    Contributor Level 20

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    Answered . Ethics -- You state you already have retained counsel. That ethically prevents any reputable attorney on Avvo - or anywhere else for that matter - from weighing in. Professional ethics prohibits interference with an existing established attorney client relationship.

    This site is not here to provide a forum to second guess your attorney.

    Schedule an appointment to discuss this with your attorney. If you are not pleased with the settlement offer, go through all the reasons why with your attorney. Your lawyer represents you and your wishes as client.

  2. Joseph Jonathan Brophy

    Contributor Level 20

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    Answered . I understand Attorney Brinkmeyer's unwilingness to advise you when you have your own lawyer, but I think that I can give you some information within the bounds of ethical conduct. Your attorney can't help it if there is a limited insurance policy and that Medicare has a legal right to be reimbursed. In such circumstances Medicare generally will work out a compromise that will leave some money for the victim. Unfortunately your attorney can't guarantee that. Medicare won't negotiate until after you decide to settle the case. Whether your attorney is obligated to continue representing you if you refuse to accept what he or she considers to be the best offer depends on what your retainer contract says. You need to have a full conversation with your lawyer to get more complete information about these issues. Before you insist on taking the case to trial you also should know what the expenses are liable to be and whether there is any realistic chance of collecting a judgment in excess of policy limits. Sometimes half the loaf is the best you can do.

  3. Mark Christopher Wolfe

    Pro

    Contributor Level 13

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    Lawyer agrees

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    Answered . There are two issues for you to consider in this situation. First, how winnable is the case? and the second issue is, how collectible is an excess judgment? (a judgment for more than the policy limits.) If there are liability issues, then that needs to be considered in your decision because you may not recover the same amount at trial as is being offered. Second, even if the liability issue is solid, the next question becomes how collectable is an excess judgment. This is often the real critical issue for people in your situation. If the defendant has no assets to satisfy the judgment or can bankrupt the excess judgment, then you can find yourself incurring a lot of trial expenses and still only recovering the liability limits of the defendant's policy. Many times trying to collect on an excess judgment is like chasing the wind.

    Since you have an attorney who is a lot more knowledgeable about the facts of your case, you should consult with him or her about these issues and any other issues that he or she believes supports the recommendation to accept the liability limits.

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