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Is it legal malpractice if my attorney pursues an UM claim for my injuries without investigating other sources of liability?

South Orange, NJ |

I was involved in a car accident which left me with serious spinal injuries. My car was t-boned by a rental vehicle which ran a red light (I had the right of way). The driver fled the scene of the accident. The individual and her sister, both authorized drivers of the rental vehicle were contacted several times by a detective. After two weeks of investigation, the detective discovered inconsistencies with the sisters' "recollection" of the rental's whereabouts. Initially, they proclaimed that the driver was a boyfriend, then later maintained that the car was stolen and that they did not know about the accident, nor the driver. They never filed a police report, and the primary lessee plead innocent, but was found guilty in municipal court for failure to report an accident.

I assume the rental's driver was a family member (permissive use with access to keys) as police working on the case recall that the car had no physical indications of being broken into. The primary lessee had personal auto policy, which if extended to her rental vehicle would have a policy limit which triples that of my UM coverage. My former attorney ( I am now without representation), has no knowledge of the supplemental investigative report and disposition letter, which I was able to obtain on my own; the disposition letter states that lessee was found guilty of failing to report an accident, further evidencing that lessee knew about the accident and identity of the driver.

Attorney Answers 11

  1. Best answer

    Your facts certainly suggest a failure on the part of your prior attorney to fully investigate and pursue the issue of primary liability, which may form the basis of a legal malpractice claim. However, I would also be interested in learning more about when the accident occurred and more about your injuries.

  2. No one on this board is going to tell you "yes, that is legal malpractice."


    What we can tell you is that we are sorry about your situation and that you need to sit down with your attorney to understand his or her thought process in his representation of you. You do not share enough pertinent details for me to personally understand the connection to a UM claim in this case.

    Good luck.

    In no way am I offering you legal advice, and in no way has my comment created an attorney-client relationship. You are not to rely upon my note above in any way, but insted need to sit down with counsel and share all relevant facts before receiving fully-informed legal advice. If you want to be completely sure of your rights, you must sit down with an experienced criminal defense attorney to be fully aware of your rights.

  3. More information needed to evaluate. Don't handle the claim yourself. Find a lawyer with a low contingency fee to investigate and work up the case.

  4. I would need more information. You need a good insurance lawyer.

  5. It sounds as if there is valuable information about the vehicle and owner. We hire our own investigators in cases like yours. At the same time we pursue UM in case the other doesn't work. These types of cases require a very experienced personal injury attorney. You need to select one as soon as possible. Also be aware that there is a two year statute of limitation. You need to file a complaint before two years from the date of accident.

    973-984-0800. Please be advised my answers to questions does not constitute legal advice and you should not rely on it, due to the fact that we have never met, I have not been aprised of the facts in you case nor have I reviewed any documents.

  6. It depends. If the attorney recovered full value for your injuries, you have not been damaged. If you did not receive near full value you might have a viable claim, if you can prove there was insurance of a greater amount than the UM policy limits.

  7. Unless your case is over, and time deadlines have passed, you are wasting energy and time trying to figure out whether your prior attorney committed malpractice, when your focus and energy should be on immediately contacting a new attorney to take over the case.

    I have been involved in numerous cases where i have had to "correct" the decisions of prior attorneys on a case. In almost all of them, they were able to be fixed. In fact, sometimes, I have had to correct my own mistakes - no one is infallible - but as far as I know, I was always able to correct them. As long as you are not out of time, this and most issues are fixable. I tell attorneys that used to work for me, who would panic over a decision - "relax, almost everything is fixable".

    Also, just as a side note - there are certain requirements that must be shown before you are entitled to UM coverage - and one is to have made some effort to identify the hit and run driver, so as to give the UM carrier some ability to go after the uninsured driver for any money they have paid to you in settlement. Second, the UM carrier (who have all the resources they need) has just as much incentive as you to find the real driver - since if they do, then they don't have to pay you anything. And if you have a 100,000 UM policy - tha would be a 100,000 reasons to find the true driver. So the fact that the UM carrier also did not solve the mystery of the missing driver suggests it is not as clear as one might think.

    Regardless, as has been mentioned, you can pursue UM benefits and a claim against who you think the real driver is - at the exact same time in the exact same lawsuit. Don't wait.

    Each case is fact senstive, so all answers should be viewed as general advice only, and should never replace a thorough and in depth consultation with an experienced attorney. Further, an answer should not be seen as establishing an attorney-client relationship.

  8. You need to sit down with an attorney and evaluate the issue of whether or not the "primary lessee's" insurance coverage should be pursued. You may still have time to pursue this "new information". Most personal injury attorneys offer free initial consultations in cases like this. Your attorney may have missed this "new information", but you may still be able to recover through a claim against that recently discovered. I would need much more detail to give you any further opinion in this matter. Contact a local attorney experienced in handling personal injury claims. Good luck.

  9. Get a transcript of the municipal court trial or the plea. Bring it and all police reports to an experienced personal injury attorney.

  10. I agree with my colleagues. Meet with an experienced attorney asap to discuss the details of your case. Don't delay. Time may be of the essence. Many lawyers, such as myself, offer free 30 minute consultations. Good luck.

    The above is general information only and is not legal advice. The information provided does not form an attorney-client relationship, and should not be relied upon to take or refrain from taking any action. I am not your attorney until we sign a retainer agreement.

  11. You provided more information in one of the comments that you wrote to one of the attorneys' answers. You stated: "my previous attorney neglected to see the merits in bringing a claim against lessee (he, unbeknownst to me, signed a stipulation of dismissal for this defendant because he lost interest in the case and in pursuing said defendant). For over one year, this attorney failed to answer to the lessee/defendant's attorney's request for my depositions (no depositions of the lessee were ever taken)! The defendant's attorney filed to have a judge dismiss the case several times based on my attorney's negligence and failure to respond. My attorney was not paying attention to my case which I trusted him with and had total faith in. Unfortunately, he neglected to thoroughly conduct an investigation on the events leading up to the accident nor was he aware that the defendant's policy limits was significantly more than what I could get from my own policy's UM claim (he confirmed this with me when I inquired)."

    With that additional information you gave a much better picture of why you want to pursue your lawyer - rather than the negligent driver. Unfortunately even with the additional facts, there are still a lot of unknowns/unstated facts for an attorney to give you an opinion. A claim for legal malpractice needs to have (1) a breach of the standard of care (on the part of the lawyer), (2) damages arising from such breach and (3) a source of funds to pay the recovery - just like most other claims. You are likely to be helped in evaluating those issues with the assistance of a capable and experienced personal injury attorney in the appropriate jurisdiction (probably the state where you hired your lawyer).

    The information provided in this answer is intended to be preliminary and informational ONLY. It is not legal advice for your jurisdiction nor may it be relied upon as such. The posting of this informational answer does not establish an attorney-client relationship.

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