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The other driver is nowhere to be found to sign affidavit of no excess. Any legal method to move case forward without this?

Westbury, NY |

My attorney does not appear to be pushing the issue. The other insurance company seems to be dragging this on and on. The other driver I believe moved back to his native Country. They have already agreed to give me the full policy.

Attorney Answers 9


  1. Best answer

    There is no procedural bar which would prevent you from moving your case into litigation based upon a lack of an affidavit re: excess or additional coverage. The most probable reason that your attorney appears to be dragging his/her feet is because s/he is loathe to spend money and time where the great likelihood is that no additional coverage exists.

    An affidavit of no additional coverage is a tool that attorneys use in different ways. In a situation where the underlying policy is $300k or more, it is a tool to seek out umbrella coverage. In a situation where the policy is $25k, it is more of a CYA type tool as the great likelihood is that no additional coverage exists. The reason for this is because insurance companies do not offer excess/umbrella coverage over a $25 policy. In most situations the threshold for such a policy is at least $250 in underlying coverage.

    The best chance of additional coverage would be if two different people owned and operated the car. This doesn't sound like a possibility here. In fact, if the driver already fled the country then it is highly unlikely that any additional coverage exists.

    That being said, if your injuries are significant and you wish to seek more assurances you should advise your attorney that you would like an asset search performed on the owner and operator of the vehicle. Some lawyers shy away from this tool but it is often used.

    At the end of the day the most likely scenario is that you will be stuck with the underlying policy. Remember that the more you push a case into litigation, the more $$ you spend. And that $ will come off the top of your ultimate recovery.

    Good luck!

    The aforementioned opinion does not constitute legal advice and is for general educational purposes only. See an attorney licensed in your jurisdiction for competent legal advice. No attorney-client relationship has been formed through the within legal question and answer session.


  2. I'm going to edit the practice area of your post to "Personal Injury."

    I am licensed to practice law in the State of California, and thus, my answers are based on California law. The laws of your jurisdiction may differ, and therefore, this answer is for informational and educational purposes only and is not to be considered as legal advice. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author.


  3. You can change counsel if you are unhappy with yours.


  4. Get your attorney to explain what is going on or find another who will.

    Call for a free consultation at 727-937-1400 or visit us on the Web at www.serviceandjustice.com.


  5. How much is the policy? If its 25/50 there won't be insurrance. Do you have a SUM policy?
    There is a company that can search for excess insurance policies. See if you lawyer knows it or email me directly for it. You only pay if they find something. While they are not perfect they have found policies that carriers failed to disclose.

    I am a former federal and State prosecutor and now handle criminal defense and personal injury/civil rights cases. Feel free to check out my web site and contact me at (212) 577-9797 or via email at Eric@RothsteinLawNY.com. I was named to the Super Lawyers list as one of the top attorneys in New York for 2012. No more than 5 percent of the lawyers in the state are selected by Super Lawyers. The above answer is for informational purposes only and not meant as legal advice.


  6. If you are unhappy with your attorney, you should discuss the matter with him/her so that you can understand why things are moving slowly. If you get the feeling that your claim is being neglected or that the attorney is inexperienced in the field, you should search for an attorney who can better assist you with your claim.


  7. Your attorney should have given your carrier a notice for underinsurance. If it is a limited policy 25/50, then there will not be excess since excess (umbrella policy) is normally with a minimum 100/300 policy. Good luck.

    If this answer is helpful, then please mark the helpful button. If this is the best answer, then please indicate it. Thanks. For further information you should see an attorney and discuss the matter completely. If you are in the New York City area, then you can reach me during normal business hours at 718 329 9500 or www.mynewyorkcitylawyer.com.


  8. Get an update from your lawyer, and if you're unhappy, pick one of the fine NY lawyers above.


  9. Get a copy of the declaration page of the insurance policy. It will list the coverages and excess or umbrellas if they exist. If your not convinced take a verdict and enter judgment.