My wife was turning left across traffic. She waited for the oncoming lanes to clear. The motorcyclist had turned one block away, accelerated at an extreme rate, and hit the passenger side of her car. She never saw him. Our insurance company investigated and found no negligence on my wife's part, and are denying the deceased's estate's claim. They tell me that if the they bring forth a "theory of liability" that they may be able to file a lawsuit asking for more than our policy covers. The police report makes it fairly clear that the motorcyclist was driving recklessly, very fast, and tested positive for drugs. My wife has been through an ordeal and we don't have extra money, but want to find out what our best course of action is.
First, be sure that you cooperate with your insurance company. Work with your appointed attorney. Second, contact YOUR OWN attorney the moment it appears that your appointed attorney is paying more attention to the insurance company - than protecting you ... Or if you get a "Reservation of Rights" letter from your own insurer. Third, INSIST that your insurer tender your full liability policy limit (in return for your full release) if there arises a "Substantial likelihood" of an excess verdict against you (greater than your insurance). Fourth, consider an affirmative claim against the motorcycle driver's estate if you suffered loss. Finally, take care of your bride. Consider counselling for her.These situations are very tough on folks. /s/ Ward Merdes
If you get sued, let your insurance company know. They will hire an attorney to represent you. Attorney will discuss all the risks with you at that point, because they will know what other party has going for them, etc. Unless you want to talk to an attorney now to discuss details and for a second opinion, there is no point in hiring one, because between your attorney and the one insurance company hires- they will be doing the same thing. Insurance co's attorney is essentially there to protect you.
I am handling a case very much like this one at the moment. My client was the one making the left turn. he is obviously very shaken up because the morotcyclest died. Generally, there is bias against the left turning vehicle because the vehicle going straight has the right of way. But, we believe that the relative speeds are self evident. The impact was so severe that the motorcyclist must necessarily have been speeding. At least in your case, the police found in your favor.
My advice to you would be to meet with your defense attornehy (as provided by your insurance company). He should be able to explain your rights and responsibilities. However, be very careful with "staff counsel" like GEICO and some others have, and, you must also be critical of what your insurance defense attorney tells you. If you do not feel comfortable with the information provided by the attorney, it is certainly worthwhile to retain an independent attorney. The reason I say this is because you must look out for your own best interests. All due respect to the insurance defense bar, if an insurance company is calling the shots, they may be more interested in their company's best interest, not yours. Good luck.
Any time there is a death involved you have to take the threat of a jury verdict for a large amount of damages seriously, even if such a verdict is unlikely because of the facts of liability. Your insurance company will defend a lawsuot and pay any settlement or verdict, but only up to the policy limit. If the insurance company is given an opportunity to pay the policy limit in exchange for a release of all claims from the heirs and fails to offer the limit, then a jury renders a verdict for more than the policy limit, the insurance company may end up being on the hook for the whole amount. So, the answer to your question really depends on several factors unknown here including all of the facts concerning liability, how much insurance coverage you have, how much assets you have to protect, who the plaintiff's counsel is, and whether the insurance company is likely to be able to settle the claim. You can start by asking the lawyer the insurance company hires to defend you to give you his assessment. The next step would be to consult your own private counsel regarding the best course of action.
Your insurance company has a duty to defend you in the lawsuit and to indemnify your liability up to the policy limit. For instance, if you have a $100,000/$300,000 policy limit, you would be covered up to a $100,000 judgment. If the injured party (here, the estate) pursues a claim for $1,000,000 (for example), your insurance company must still pay the legal fees to defend you.
There are very strict laws about how insurance companies must handle this type of situation. If the insurer fails to tender the policy limit and a judgment is obtained against you for more than $100,000 (in my scenario), the insurer would be liable under a theory of insurance bad faith. In that case, you need to consult a local attorney that practices in the area of insurance bad faith.
Until the insurance company steps out of line, though, you need to cooperate with them. They will hire defense counsel and attempt to settle the matter. Even if the case goes to litigation, your insurer must defend you.
Since a death occurred, I would recommend that you follow the advise of your insurance companies attorney for the time being. If at some point you feel uncomfortable or uninformed as to what is going on, then get your own separate attorney to help you.
I'm sorry that you and your wife are having to deal with this unfortunate situation. Best Wishes.
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