If 2 years after an accident, the other party files a law suit, does the attorney the insurance company assigns represent you?
6 attorney answers
When a lawsuit is filed against an automobile insurance company's insured for damages allegedly suffered by a claimant in an automobile accident with the insured, the insurance company has a duty to defend the insured. A part of the insurance company's duty can be the right to retain an attorney for the insured's defense and to pay that attorney's fee. Because the insurance company selects and pays the defense counsel, questions arise regarding who is the attorney's client and whether the attorney owes a duty to only the insured or to both the insured and the insurance company.
Whether an attorney represents the insured or the insurance company, there is a one-client relationship. If the attorney represents the insured, than he or she owes no duties to the insurance company. The attorney owes the insured a duty of loyalty, a duty to use his or her independent professional judgment, and a duty use every ethical means to lessen the insured's exposure to liability. When an attorney represents the insured and the insurance company, there is a two-client relationship, also called a tripartite relationship. The attorney still owes both clients the same duties. If a conflict of interest exists between the clients, the attorney must disclose the conflict to both clients and obtain their consent to continue the two-client representation.
The insurance company's right to choose the attorney, who will defend its insured, can be found in the insurance policy. The duty to defend clause, the cooperation clause, the supplementary payments clause, and the voluntary payments condition are generally considered as the sources of the right. The same clauses also govern the extent of the insurance company's rights and duties to defend. For instance, an insurance company cannot tell a retained attorney to stop representing the insured because the insurance company is concerned over the cost of the defense. Likewise, until the insurance company had discharged its duty to defend, it cannot stop the attorney's representation because the insurance company has paid out the policy limit on the claim
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It appears that your insurance company hired a lawyer to defend the lawsuit. That lawyer is called an insurance defense attorney. That lawyer does represent you. However, that lawyer also represents the insurance company. The lawyer should do everything he or she is capable of doing to protect your interests while also protecting the interests of the insurance company. If this is a case where the value of the case may be more than your insurance policy limits, there may be a conflict of interest for the insurance defense attorney because the interests of the insurance company may be different than your interests. If that is the case, you may need to hire your own independent attorney to represent you and your interests. Your attorney would make a demand on the insurance company lawyer and the insurance company that the case be resolved within the policy limits. If the insurance defense lawyer and the insurance company refuse to resolve the case within your policy limits despite having had the opportunity, the insurance company may be required to pay the full value of the case or face the possibility that you could sue the insurance company for bad faith insurance practices. This is a very specialized area of law. You need to hire a lawyer who has significant experience in handling insurance bad faith cases.
If you have not already done so, contact your insurance company and advise it that you have been served.
Your insurance company has an obligation to provide you (the insured) with a defense to claims pursuant to coverage. However, if you neglect to cooperate with your carrier (by failing to inform them of the suit, or failing to communicate), your defense may be compromised. Note that the duty to defend may exist even if coverage is in doubt and ultimately doesn't exist.
Please make contact with your insurance company, place them on notice of the case, and inquire about the retention of attorney. You've paid for it.
If you ever have any questions or concerns within my firm's Practice Areas (Injuries and Disabilities), please do not hesitate to contact me.
In general, the statute of limitations requires a party to file a lawsuit within 2 years after an accident. The general contractual duty for the insurance company to defend the insured even applies in those situations where a lawsuit is filed beyond the statute of limitations and would be subject to an immediate Motion to Dismiss.
This varies by state. Ask the lawyer that the insurer retained whether the lawyer represents you or the insurance company. Ideally, the lawyer will put that in writing for you. Sometimes conflicts of interest arise such that the insurance company should not be choosing the attorney for its insured. Typically, a liability insurer provides retained defense counsel when an insured person is sued.
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Who's insurance company ?
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