Skip to main content

What do you do if you think your atty is pushing a "settlemt" and discouraging going to court. We can push it, but should we?

Geneseo, IL |

Husband was in a motorcycle accident that was 100% other driver's fault. Split/seperated pelvis, frt & back, and other injuries. Had a plate put in his pelvis and casts applied. 3 wks aft one cast came off he was airlifted to Peoria with multi blood clots in his leg and both lungs. After mo.s of multiple Dr.s, PT, surgeries, tests, medication, complications, pain mangmt., he has been released w/ partial-to-full disability.

State Farm is the mutual ins. co. 100% defendant's fault. Well documented, witnesses. SF assigned 1 Adjuster and we were forced to file a lawsuit against the other driver. Our lawyer is telling us that settlement is not 3 x med/lost wages/future lost wages and that we shouldn't ask for more than the policy allows. Can't go after his house or investments? Advice?

I would like to thank all of you that have given advice.. I want to stress that we are not looking to go beyond policy limits, but policy limits. Mr. C. said that my husband would receive some sort of disability through the PO, but that is not correct. The PO does not provide disability to the NALC . That was thoroughly explored. The Union contract is proof. He referred to our credit. We were advised these "lenders" would chg an exorbitant int. to loan $ and was strongly advised not to use them if at all possible by our atty. The elderly man at fault has questionable med. issues and is still driving Our atty said he would not call him to the stand if we go to ct? Not asking to bully but shouldn't the jury see the full situation? We have minor children & my husband will never be able to return to his high-paying job. Only 12 yrs from retirement. We will work w/ our atty and hope that he is looking out for us and not in a "settlement agreement" with the atty for SF to close the case.

Attorney Answers 8

Posted

Sounds like you husband has a very severe injury, which is unfortunate and no amount of money will adequately compensate.

It seldom make sense to go after a person's assets unless they are extremely wealthy. Both their home and retirement accounts are protected in various ways.

You can decide to hire a different lawyer if you are unhappy, but, in more cases than not, accepting the policy limits is the wise decision.

You should ask your lawyer the rationale for accepting the policy limits and weigh it against the chance of greater recovery.

Though we strive to provide accurate legal information in our answers on AVVO, our answer should not be construed as legal advice and it does not create an attorney-client relationship. Our firm only forms attorney-client relationships by written agreement signed by both our firm and the client. Please seek an in-person consultation with an attorney immediately as almost all legal matters are time sensitive and failing to meet deadlines can result in adverse consequences.

Mark as helpful

14 lawyers agree

3 comments

Asker

Posted

Thank you so much for your advice...this helps us immensely.

Asker

Posted

One more question, if you don't mind, I had time to think on the "policy limits" that you mentioned, and that, I guess, is the crux of my original question. My attny is NOT asking for policy limits. The guy did have an umbrella, so the best we can do is 1.1 mil. We would be okay with that, but he is suggesting that we should settle for around 600,000-700,000. My husbands medical alone has totaled to 233,000, not including future pain management costs, and his lost wages plus future lost wages comes up to 303,000. (the attorney's office came up with that number). My husband is 53 and was a mailman. This hasn't even included pain and suffering, credit being totally ruined, constant harassment of creditors, stress of emotions, etc., etc., etc. Why would he not go after, at a min, the policy limits? My husband is a, or was, a USPS mail carrier. We hoped to have him make it to 65 so that we can get our minor children through HS and college. (we were late parents). I ran out of characters above in the initial, so I wasn't able to fit in the costs incurred in the lawsuit, age, profession, etc. Thoughts still the same??

Joseph Andrew Brabender IV

Joseph Andrew Brabender IV

Posted

I'm sure this is a very stressful time for you and understand your concern. Lawyers consider many factors when determining the best course to take in a case. The factors are too numerous to list and here is not the best place for posting detailed information. I would suggest that the lawyers here have given all the legal information they can on a public online forum and most of us won't go into detail to protect both you and ourselves. If you are unhappy with your lawyer or feel that he/she is not answering all your questions, you can contact another attorney for a private consultation. Almost all of us offer initial consultations for free. I'd just caution you that though most attorneys are honest, some will make outlandish statements ("we'll take him for everything he's worth" ) just to get your business. A good lawyer will do what is best for their prospective client and often times that means telling them that their current lawyer is doing a fine job.

Posted

The sad reality is that you can almost never find assets that are not magically disappeared, nonexistent, or exempt under the law for an individual. In just about every auto case, unless you are "lucky" enough to get hit by someone who is independently wealthy, you are limited to the insurance policy in the real world.

The other thing that I'm sure your husband's lawyer has already addressed is a possible UIM or Underinsured Motorist claim against your own coverage. That would allow you to pursue UP TO the difference in your limits less the culpable driver's limits.

The only other option would be if the other driver had some other source of insurance, was operating a commercial vehicle, or had an umbrella liability policy or other policy that attached to the vehicle or driver. I am certain he has already looked into this.

Sorry for the answer you didn't want.

Stephen L. Hoffman
Law Office of Stephen L. Hoffman LLC
Chicago, IL
773-944-9737
Email: stephen@hofflawyer.com
Website: www.hofflawyer.com
Blog: www.hofflawyer.com/blog/

This answer posted on Avvo is for informational and educational purposes only. There is no attorney-client relationship created or formed and you should not rely on this as legal advice. The suggestion is made that if you wish to protect your rights, you consult with an attorney immediately.

Mark as helpful

1 found this helpful

16 lawyers agree

3 comments

Asker

Posted

No apologies, this is why I asked. I wanted an honest, and unbiased, response. I feel that I have received that.

Asker

Posted

One more question, if you don't mind, I had time to think on the "policy limits" that you mentioned, and that, I guess, is the crux of my original question. My attny is NOT asking for policy limits. The guy did have an umbrella, so the best we can do is 1.1 mil. We would be okay with that, but he is suggesting that we should settle for around 600,000-700,000. My husbands medical alone has totaled to 233,000, not including future pain management costs, and his lost wages plus future lost wages comes up to 303,000. (the attorney's office came up with that number). My husband is 53 and was a mailman. This hasn't even included pain and suffering, credit being totally ruined, constant harassment of creditors, stress of emotions, etc., etc., etc. Why would he not go after, at a min, the policy limits? My husband is a, or was, a USPS mail carrier. We hoped to have him make it to 65 so that we can get our minor children through HS and college. (we were late parents). I ran out of characters above in the initial, so I wasn't able to fit in the costs incurred in the lawsuit, age, profession, etc. Thoughts still the same??

Stephen Laurence Hoffman

Stephen Laurence Hoffman

Posted

I can't give specific advice as I'm not your lawyer and you have a lawyer. That said, multiple factors determine value and it is a cost benefit analysis. Not every case warrants top dollar . It certainly sounds like you have to at least consider this settlement but depends on liens, prior medical, etc. I'd be happy to discuss privately if you wish to call.

Posted

It sounds like they have tendered the policy limits. You don't say what the policy limits are. If they are substantial then believe it or not you may be taking a risk going to trial, because juries traditionally do not like motorcyclists and it might not be worth the risk. Most personal injury attorneys do not like to go after personal assets and will only usually do so in the most egregious of cases.

Mark as helpful

15 lawyers agree

4 comments

Asker

Posted

Thank you for your knowledge and insight

David Ian Schoen

David Ian Schoen

Posted

Your welcome. Good luck.

Asker

Posted

One more question, if you don't mind, I had time to think on the "policy limits" that you mentioned, and that, I guess, is the crux of my original question. My attny is NOT asking for policy limits. The guy did have an umbrella, so the best we can do is 1.1 mil. We would be okay with that, but he is suggesting that we should settle for around 600,000-700,000. My husbands medical alone has totaled to 233,000, not including future pain management costs, and his lost wages plus future lost wages comes up to 303,000. (the attorney's office came up with that number). My husband is 53 and was a mailman. This hasn't even included pain and suffering, credit being totally ruined, constant harassment of creditors, stress of emotions, etc., etc., etc. Why would he not go after, at a min, the policy limits? My husband is a, or was, a USPS mail carrier. We hoped to have him make it to 65 so that we can get our minor children through HS and college. (we were late parents). I ran out of characters above in the initial, so I wasn't able to fit in the costs incurred in the lawsuit, age, profession, etc. Thoughts still the same??

David Ian Schoen

David Ian Schoen

Posted

I am probably not the person to direct this comment to as I do not practice in your state and have no idea of values there. What I can tell you is that there are many variables that go into this decision-making process and you should discuss the reasons with your attorney to support his belief that he does not think that you should shoot for the policy. I am sure that he has a much better feel for the situation than I could possible have, not having access to ALL of the facts, including what kind of appearance and witness your husband makes. If he doesn't feel that he will make a sympathetic and/or likable witness, it may be risky to try the case, especially given the fact that, as I previously stated, jurors do not like motorcycles as a general rule.

Posted

You CANNOT sue the other driver unless you REFUSE to accept the policy limits which have apparently been tendered. NO attorney would file suit in this situation. It will take at least $7,000.00 and 9-12 months to prepare the case for trial. Let's say you get several million dollars. Think about what you would do if you owed that much money. The Defendant would spend $400.00 to file bankruptcy which would make the multi-million dollar verdict worth less than the paper it was printed on. Now you have the same policy check you had before you filed suit, MINUS whatever you spent to work-up the case.

For future reference, for another $100.00 - $200.00 per year, you could have purchased at least $500,000.00 -$1,000,000.00 of uninsured motorist/underinsured motorist coverage, all of which would be available to you now.

Your attorney should have explained.

If this information has been helpful, please indicate by clicking the up icon. Legal Disclaimer: Mr. Candiano is licensed to practice law in Illinois and Indiana. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Links: ccandiano@themargolisfirm.com http://www.themargolisfirm.com

Mark as helpful

14 lawyers agree

4 comments

Charles Joseph Michael Candiano

Charles Joseph Michael Candiano

Posted

If the policy limits were tendered BEFORE your attorney became involved, she CANNOT take a 1/3 fee.

Asker

Posted

Thank you for your suggestion, but policy limit was not tendered, suit was filed because SF was being uncooperative. We just want to be reimbursed fairly. We are not being greedy, but our life has been turned upside down...and not our fault. I just ask that they at least offer policy limit. If you want to see additional info you can read the comments on the other attorney's comment section. This is not us trying to go for multi-million dollar settlements. We are in the Demand stage and I just want to make sure that we are covered.

Asker

Posted

There has been NO settlement or check written. I think you may have misread my original comment. We are negotiating settlement right now to wrap up the lawsuit.

Charles Joseph Michael Candiano

Charles Joseph Michael Candiano

Posted

There are questions. Why would you have any bills or credit problems ? All of your husband's medical care should have been billed through his health insurance. Moreover, he would have been eligible for STD and LTD through the post office. If push came to shove, you could easily have borrowed a monthly sum to supplement your income from any of a number of case loan companies. There is simply no way that your credit should have been unaffected. This is a different league. Has your attorney hired an accountant/actuary to testify as to the amount of your husbands lost future earnings? Given the pelvic injuries and blood clotting disorder, has your attorney hired physicians to testify as to value of future medical care? If your husband will need assistance with daily activities or modifications to the house, has your attorney hired a life care planner? If your husband suffered a closed-head injury that affected his ability to think, has your attorney hired a neuropsychiatrist to quantify the extent of the impairment? You cannot "ask" for anything and the old 3x specials rule has been dead for 20 years. You will get just exactly what you can prove and not one penny more. If you have not bothered to spend the time and MONEY (those experts will cost at least $15,000 - $20,000 for the initial reports and retainers), it is an iron-clad guarantee that you will be forced to settle for short money. Again, all of this should have been explained by your attorney.

Posted

Never settle for an attorney who only knows how to settle

Mark as helpful

12 lawyers agree

Posted

The simple answer is that there is not enough information here (nor should there be) to determine whether the settlement is one that should be taken or not. Usually the policy limits are the practical upper limit of recovery from the other driver, then UIM coverage if available and applicable, and, in very rare cases, personal assets of the Defendant. These are rare, but not unknown. Earlier this year I settled a case where the at fault driver was an older gentleman who did not believe in insurance, and carried minimal coverage (with State Farm). Doing some research on the land records, however, revealed that he had real estate holdings, and investigation revealed that he was not poor, he was just frugal, and a substantial recovery was made from his personal assets. Get a second opinion if you are not satisfied with your attorney's recommendation. That being said, the odds are that acceptance of the policy limits with negotiation of any liens for medical expenses is probably the right course of action.

Mark as helpful

14 lawyers agree

3 comments

Stephen Laurence Hoffman

Stephen Laurence Hoffman

Posted

Unfortunately, these scenarios are very rare. If only justice really did prevail in all cases!

Andrewe William Johnson

Andrewe William Johnson

Posted

I did use the word "rare" twice. ;0) It is unlikely, but possible, that the Defendant has sufficient assets to be worth pursuing beyond the policy limits, and a good attorney will investigate this issue and make that determination, which is why there is not enough information in the original post to make a recommendation.

Stephen Laurence Hoffman

Stephen Laurence Hoffman

Posted

No doubt and was not questioning your answer at all. If only people actually ever had non-exempt assets, but for the most part those with lousy insurance are more than just cheap. The asker should definitely get answers from his attorney as to what efforts were taken in this regard.

Posted

The problem with going beyond the policy limits is that the defendant can file a bankruptcy. Hence, you would need to evaluate his assets to determine how much the bankruptcy would exempt from payment.

Clifford W. Horwitz
Horwitz, Horwitz & Associates
25 E. Washington St. Chicago, IL 60602
312-372-8822
Horwitzlaw.com

Mark as helpful

12 lawyers agree

Posted

You need to hire a car accident attorney that fits your needs as a client. You can always seek a second opinion regarding your motorcycle accident case. Best of luck.

Mark as helpful

9 lawyers agree

Personal injury topics

Top tips from attorneys

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics