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My 18 year old daughter was involved in a car accident where catastrophic brake failure occured in the new "used" car.

Danvers, MA |

As she was approaching a stop light, she had no brakes or prior warning of this. A school bus was making a turn into the intersection she was approaching. She swerved to right onto the sidewalk to avoid bus and ran over pedestrian. I had minimal coverage limits on policy. She was not cited and it was determed she was not at fault. The lawyer representing pedestrial will not settle due to expense related to injuries. What can happen now to my daughter and my family if they pursue civil action? I have nothing to give them.

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Attorney answers 7

Posted

Contact your insurance agent and/or insurance company at once. Your auto insurance policy should provide you with a defense attorney in connection with any claims asserted against you and your daughter, and this attorney can explain the answers to your questions in detail.

Best wishes to you.

No attorney-client relatonship is created in responding to this question, and advice provided is based solely on very limited facts presented, and therefore may not be correct. You are advised that it is always best to contact a competent and experienced with the practice of law in the county in which you reside, particularly as it relates to family law, child support, custody and visitation (a/k/a "parenting time") issues, including 209A abuse-prevention restraining orders (a/k/a "ROs" in legal-speak), regarding un-emancipated children, under the age of 22.

Asker

Posted

I have. They will sent me letter telling me that I should seek legal counsel. They will provide an attorney up to policy limits. Anything request for damages over policy limit will require me to obtain my own counsel. What can happen to my family if the case is not settled with my insurance company? I have nothing to give them and can't even affort to retain an attorney. I own a home but owe more than it is worth. No savings. My daughter just graduated high school. What can they go after if I have nothing? It was an unavoidable accident.

Julie Court Molloy

Julie Court Molloy

Posted

Nonetheless, your insurer is obligated to appoint an attorney on your behalf. In theory, a judgment is valid for 20 years, so this could adversely impact your daughter in her future.

Asker

Posted

I have asked my carrier to let me know when they have appointed an attorney to represent us. Being Massachusetts, how does no fault apply to an accident such as this? Is it relevant?

Julie Court Molloy

Julie Court Molloy

Posted

No-fault only matters up to the first $2,000.00 in medical bills/lost wages. As pertains to the pedestrian, it was your daughter operating the vehicle that hit the pedestrian, and, while the "trier of fact" (either judge or jury) could find your daughter "not responsible" (not "not guilty" -- it is a question of civil liability, not a criminal case) and instead hold other vehicle at fault, that is risky -- and requires an attorney!

Asker

Posted

OMG. We have no money. The recession wiped us out. We are barely holding on to our home (we are homsteaded if that matters). My daughter barely makes minimum wage at McDonald's. We bought the car used 2 months before the crash. She was not cited and it was determined that it was unavoidable by the State Police after inspecting the car.

Julie Court Molloy

Julie Court Molloy

Posted

Keep calm! If your daughter was the owner of the car as well as the operator of it at time of the crash, assets owned by other members of the family are already protected, by virtue of the fact, one presumes, that your daughter does not own the home, but instead you do, as her parent. All of your questions are ones that an attorney appointed by your insurer should be answering for you. While your insurer says it provides legal counsel only up to the policy limits, it can cost just as much to defend a $20,000 lawsuit as it does to defend a $2 million lawsuit. See Attorney Karon's comments also.

Asker

Posted

I purchased the car and insured the car. It was in my name. She is an occassional driver on all of my cars. I just called the Attorney General Hotline-Insurance who stated that my insurance company lawyer will defend us up the 40k. Anything over is our responsibility and on our own dollar. She also said that since my insurance company is offering a settlement, then my insurance company has determined that my daughter is at fault. Contrary to what the police reports and reconstructions reports claim. Is this odd? Or is it that any accident involving a pedestrian is paid out?

Julie Court Molloy

Julie Court Molloy

Posted

If your insurer has determined your daughter was "at fault," you will be charged additional monies in connection with premium, and you will receive a notice of this determination by your insurer. You can (and should) appeal this to the Superior Court -- but you should be mindful of the short time frames within which you must act, or you will lose this right. For all reasons previously stated, your insurer's determination as to who was "at fault" is only binding on you a policy holder and premium payor. It takes just as much money to defend a $20,000 (or $40,000) lawsuit as it does a $2 million lawsuit, so, long story short, your insurer has decided it is less expensive for it to simply pay over the policy limits, even without your consent, rather than to try to defend the lawsuit. Or so it sounds -- without seeing actually paperwork, this is little more than an "educated guess" on my part. I suggest you speak with an attorney and have that attorney demand that your insurer appoint counsel to defend you, at least at point (where it sounds as though no lawsuit has as yet been filed). As noted by Attorney Karon, one or more of you can always file for bankruptcy after suit has been filed or judgment entered -- not the most enviable "option," agreed -- which will eliminate any personal liability on your or your daughter's part, leaving injured party with only your insurer against/from whom to recover damages. Obtaining higher policy limits really is best "solution" in terms of dealing with things like this -- but obviously too late to do so now. Best wishes.

Asker

Posted

She did get a surcharge notice in the mail which she is appealing. Nothing else. My policy limits have been increased. I will speak with an attorney. I'm not quite clear on whether the plaintiff can sue my daughter, me and my husband because we are all on the insurance policy and that I was the owner of the car.

Julie Court Molloy

Julie Court Molloy

Posted

I am glad to hear she is appealing the for surcharge -- I would recommend that she hire an attorney for the surcharge appeal. The injured person may also come after you as the owner of the vehicle in addition to going after your daughter. However, if your husband was not listed as a co-owner of the vehicle, your home, which, presumably you own as husband and wife, tenants-by-entirety, is not "reachable" EXCEPT if your husband were to predecease you during the 20-year period during which a JUDGMENT would be valid -- and this probably matters not at all because of the homestead declaration you indicated you have already recorded regarding your home. It will be well worth your while to hire an attorney to assist you, and my sincere apologies for any and all "legalese!"

Posted

If the attorney for the pedestrian does not accept a settlement and the case ever goes to trial remember that the plaintiff must prove fault before anything is owed. Your insurance company's defense counsel needs to answers your questions and concerns. Also it will probably be worth it to at least consult with a local private personal; injury/defense attorney to answers your questions & to assist in protecting your family's assets from any potential verdict.

This is not intended to be legal advise or as legal representation. I am a California personal injury attorney . Be aware that every state has its own statute of limitations; and statutes & case laws that govern the handling of these matters.

Posted

Your insurance company owes you a defense. The lawyer retained by your carrier to defend you and your daughter can also defend by claiming the brake failure and the fault of the seller to inform you of a problem with the car. Don't take this on alone. Make sure that you contact your carrier.

Asker

Posted

I have the name and number of the seller of the car. We only had the car for 2 months and it passed Massachusetts state inspection. Should I pursue the seller of the car or let the insurance company lawyer pursue that?

Asker

Posted

Can I file a claim against them and in turn, if awarded damages, give it to the plaintiff in my case?

Elizabeth Taylor Herd

Elizabeth Taylor Herd

Posted

You need to let your attorney handle all of the claim. In addition, if your daughter was injured make your lawyer aware of this because a counterclaim is mandatory and can be made on behalf of your daughter in the same suit.

Asker

Posted

She was not injured. The accident happened November 20, 2012. Is it too late to pursue seller of car?

Posted

Your auto insurer should be required to hire a lawyer for your daughter, who is supposed to represent her interests. Your auto insurer is also supposed to cover the cost of defending the lawsuit, so until there's a judgment against your daughter, she is not liable to pay anything. If the facts are as you represent, the plaintiff may not win (I would have to know a lot more to assess that possibility). I'm also not seeing from what you say, how the rest of your family might be liable. If the plaintiff will not settle, there will be a trial, and if the plaintiff gets a verdict for more than the insurance coverage, your daughter can explore her options, which could include declaring bankruptcy to discharge the judgement-she should only do this after consulting with an experienced bankrupcy attorney to see if this makes sense. The first step though should be to ask these questions of the attorney retained by your insurance company. I would also recommend that you purchase higher bodily injury coverage limits, which are not very expensive and might prevent this from happening in the future.

Asker

Posted

The vehicle was registered to me and on my insurance policy and my insurance company is telling me that we are all liable. My daughter, me and my husband who is also on the policy. I wasn't aware of "blanket" coverage at the time and my other two vehicles are certainly well insured at this point. The deadline is approaching for an answer to the settlement offer and my insurance company is recommending that we retain an attorney. So I'm confused. I don't believe they have retained an attorney to represent us as yet because the settlement has not been officially rejected. From what I am told the plaintiff's attorney is trying to get information on the bus company that was blocking the intersection my daughter was approaching when the brakes failed.

Jonathan Alexander Karon

Jonathan Alexander Karon

Posted

This doesn't make sense. You need to consult with an attorney immediately. Jonathan A. Karon KARON & DALIMONTE, LLP 85 Devonshire Street, Suite 1000 Boston, MA 02109 (617) 367-3311 jakaron@kdlaw.net

Asker

Posted

We don't have any money. Recession wiped us out of jobs, our business, our savings, etc. Barely holding onto our house. We went bankrupt in 2010. My daughter just graduated high school and is working at McDonald's. Frightened. I literally don't have any money to give anyone. If I hand over my mortgage money I will go into foreclosure .. literally. We have MetLife Insurance.

Asker

Posted

This is our problem. Thanks for you help. I appreciate it.

Jonathan Alexander Karon

Jonathan Alexander Karon

Posted

If you are in Massachusetts, the Massachusetts Bar Association and the Boston Bar Association both have lawyer referral services that will allow you to get a half hour consultation with an attorney for a very small fee (approximately $25). They also have reduced fee and no fee panels if you qualify. I suspect that the situation may not be as bad as you fear but you are not getting good explanations of what's going on from Metropolitan. I would suggest you call the MBA or BBA referral service and get a brief consultation with a lawyer who can go over your situation and help you determine if there is a cause for concern. Good luck. Jonathan A. Karon KARON & DALIMONTE, LLP 85 Devonshire Street, Suite 1000 Boston, MA 02109 (617) 367-3311 jakaron@kdlaw.net

Posted

Your insurance company will resolve this for you. That's why we all have insurance.

Posted

Did you have an expert check the braking system and determine what was wrong with it. Where and when was this new old car purchased? Is the school bus company being sued? Was your daughter also injured? There are a lot of questions that need to be addressed by an experienced personal injury attorney.

Asker

Posted

The State Police Reconstruction Unit checked the car and determined it was catastrophic brake failure. No fluid and a brake line was severed. I have a report which states that the accident was unavoidable. We purchased this car used 2 months prior to the accident. From what my insurance company tells me the attorney for the plaintiff is pursuing the bus company but has yet to determine which bus company it was. My daughter did not have time to read the side of the bus. She was not injured however her boyfriend and his sister, who were in the car, have filed claims and have been seeing a chiropractor. My insurance is settling with them for 3k each.

Asker

Posted

Regarding the car we purchased, it was a private sale. We will be consulting with an attorney as soon as I can figure out how to pay for it.

Posted

Was your daughter injured; I gather not from the failure to state that she was hurt. That is the first good news. Your insurer will have to fend her, and you if sued, and the pedestrian may enjoy underinsured coverage on her own auto which would be a source of recovery for her. Tempedestrian's lawyer is likely to be practical and even if it drags on for a while accept the insurance money for a release of liability. And there is the potential of suing the car dealer.
Bob Flynn

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