How to recover from insurance company after default judgment on personal injury automobile case? I filed lawsuit against the other driver alone and got a default judgment on my motor vehicle personal injury case. How do I get his insurance company to pay since I didn't include them in the lawsuit?? Can I recover at all or do I need to file against their insurance company now?
Did you send notice of the filing of suit to his insurance company? If you did, that certainly helps. If you didn't they may be able to deny coverage under the policy because the insured did not put them on notice of the claim.
You need to go meet with a PI atty to decide what you should do at this point to try to insure your judgment is collectible.
Get a copy of the police report with the insurance information. Avvo has a great "find a lawyer" tool to locate an attorney close to your home. Good luck.
I'm not an insurance lawyer, but it's my impression that you have no claim against the Defendant's insurance company since you are neither an 'additional insured' nor a 'loss payee.' Your Defendant may elect to seek coverage or not. In fact, your Defendant may have no coverage to seek.
As knowledgeable and experienced attorneys will tell you, the hard work starts now -- at Judgment collection time. Our Texas exemption laws provide powerful tools for many (most) Defendants to resist collection. Good luck!
AVVO is a general forum for discussion purposes only. My answers, comments, ideas, approvals and endorsements do not constitute legal advice, opinions or even suggestions, as I do not have enough facts and you are not my client. As well, my response is with respect to only the laws of the State of Texas. Hire an attorney in your location if you want assistance upon which you may rely.
You cannot make the insurance company pay under these circumstances. By not submitting the claim to his insurance company and allowing a default judgment to be taken against him, the person against whom you have the judgment waived their insurance coverage.
You cannot file suit in Texas directly against an insurance company because of the acts of their insured.
This is a very good example of why you should never go to a courthouse without an attorney.
Increasingly I am seeing automobile insurers take the position that they will not provide their insured with a defense to a lawsuit, even if I tell them about it and provide proof I have served their insured with the lawsuit, until and unless their insured contacts them and specifically asks for a defense. This is the usual insurance B.S. because they could contact their insured and let them know they will handle it, but instead they want to lay behind the log to try and save some money.
So: if the insurance company had no notice of your lawsuit, I think it highly unlikely they will part with their cherished profits to help their insured and pay your judgment. You can always send it to them to see if it does any good, but I doubt it will.
You can't sue the insurance company on a third party claim in Texas.
Disclaimer: answers posted by attorney Daragh Carter to questions posted on AVVO are NOT privileged or confidential and will not and should not be construed to create an attorney-client relationship between attorney Daragh Carter and you or anyone else.
When you served the defendant with the lawsuit, the defendant had an obligation under his insurance policy to notify the insurer of the lawsuit so that the insurer can hire a lawyer to defend him, and then he has an obligation to cooperate with his defense lawyer. If he failed to comply with this obligation and it resulted in a default judgment against him, then he has probably breached his obligations under the insurance policy and, under the Texas case law, the insurer probably does not have to pay. This is why personal injury lawyers rarely take default judgments in auto accident cases.
There are ways to sue the insurance company after you've obtained a judgment--either by applying for "turnover order" from the court wherein the defendant would be ordered to assign to you his breach of contract claim against his insurer, or by you suing the insurer directly as a "third party beneficiary" of the insurance policy. In either event, the insurer will probably have an affirmative defense against your claim based on the defendant's breach of his obligations under the insurance policy. There are ways around this defense if you can show that the insurer was not prejudiced by the defendant's breach, but that's unlikely given the default judgment.
Also, if the defendant does finally turn this case over to his insurance company, the insurer may agree to cover the claim if you agree to have the judgment set aside and allow the personal injury case to proceed normally, including allowing them to present a defense. Strictly speaking, there is usually little reason for the insurer to agree to this, but I have seen it happen before.
Of course, any of these options are going to be tricky, you probably need to find a good personal injury lawyer at this point.
You have asked an interesting question. Here's the answer. First, you are now a third party beneficiary under the defendant's policy since you have a judgment. Dairyland v. Childress, 650 S.W.2d 770 (Tex. 1983). You can sue the insurance company directly, now. That's the good news.
The bad news is the carrier has all of the policy defenses available to it that they would have against their own insured (the guy who hit you). One of these policy defenses is non cooperation.
I suspect once you sue the company, they will want to at least discuss settlement with you.
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