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Personal Injury Claim, what options do I have a vailable?

Los Angeles, CA |

November 2011 I was on vacation from work and excited to be taking my son to school. The parking is horrible so I parked my car before the light . Halfway through the crosswalk ( light was still green) an F150 truck making a left turn, accelerated and struck my son and I. I tried to run but the truck was too fast. I managed to try to push my son out of the way but he was still struck . He was thrown about 10 ft on to the pavement and I was thrown about 40 ft. as a result I had a dislocated elbow, fractured rib and brusing ,swelling and bleeding. fast forward a few months , I had an MRI done and it revealed significant injuries to my spine. I experience a lot of excruciating back pain. Cannot walk for too long before my hip and leg swells amongst other complications. My sons MRI revealed

fluid in one of his joints (inflamation) the doctor determined it was a result for the accident. He complains about leg pain and cannot walk for long periods of time. The person who hit us has an insurance policy of 30,000 per accident . Ive lost time from work , school , activities(baseball) not to mention the gas to and from appointments, food , and promotions that I have been passed up on. I have kept gas receipts , food etc. Can I go after the driver to pay out of pocket expenses? My injuries are going to affect me for the rest of my life , the quality of life will never be the same I just turned 28 and my son just turned 8 . This man has ruined a big part of my life and I cant ever get that back even if I tried. I want him to pay for his negligence ( was texting while driving in a school zone)

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Attorney answers 19

Best Answer
Posted

OMG, sorry to hear about your situation. Godbless that your son is still alive. I hope by now you guys have all of your treatments square away including estimate for future treatments. Have your attorney include that with your damages...

The Statute of Limitation (SOL) in California for Personal Injury case is 2 yrs. You have two years from date of accident to file a lawsuit. Since it happened in 11/11, you have until 11/13 to file a civil suit. Filing a suit in court will halt the SOL from expiring and protect your claim. Since your son is a minor, he has until he is of age to sue (I believe it's age 18). Maybe you should settle your case FIRST ....and settle your son's case LATER (since the driver might file bankruptcy or is filing bankruptcy). If the drive file bankruptcy now, then you can wait until he has more money and sue him for your son when the guy has money again or wait until your son is 18 to sue the driver. Your son or you on behalf of your son can sue the driver when he is not suspecting a lawsuit. Catch him off guard. It's just a thought.

Did you get restitution in the criminal case against the driver?

Your tort options:
1. Driver's insurance and have the Driver sign a declaration of asset that he does not have anymore.
and from your own insurance under the UIM coverage.
2. File a law suit in the Superior Court.

OR have your current attorney or new attorney simultaneously put in a claim with your insurance and the tortfeasor's insurance, while initiating a lawsuit. That way you are protected since your statute of limitation expires in 11/13. So you have to file a lawsuit with the Court to halt the statute of limitation.

How do you know if the driver is filing bankruptcy? Tough situation. Maybe the driver is bluffing about filing bankruptcy. If he does, at least you have your insurance and his insurance OR sue him in Court. Filing a case with the court will protect your rights and stop the SOL from expiring.

Which ever comes first, the settlement with the two insurance company or your lawsuit. If the driver's insurance give you the full 30K, don't sign a release for all claims, just for partial claims, then have the defendant sign a declaration of assets. Have your attorney investigate to his background, he might inherit something valuable... then file a claim with your own insurance.

If you do not have an attorney or not happy with your attorney, please get an attorney as soon as possible, your SOL is still accruing until you file a lawsuit. You son is a minor so his is tolled until he 18 or you can sue earlier for him as his guardian. PI consultations are free.

Sorry about your situation. Whatever you decide to do or pursuit, best of luck!

*Disclaimer: This response does not create an attorney-client relationship between you and I. I am not your lawyer and I am not representing you in the underlying issue stated in your question. The response I have offered is not intended to be relied upon, you should seek out an attorney to assist in this matter. You may contact me directly at (415) 362-6765 ext.120; website: www.wc-advocateforjustice.com. (Attorney for Law Offices of William E. Weiss)

Wendy Ha Chau

Wendy Ha Chau

Posted

Correction: Regarding your son's case, catch the guy off guard when he is not expecting a law suit. There is no limitation to how many time you file bankruptcy but that would ruin the guy if he keeps filing bankruptcy... Either way catch him off guard. Your son has until of age (18) to sue. You never know, the driver might have money from inheritance...

Wendy Ha Chau

Wendy Ha Chau

Posted

I was just throwing some ideas out there but one of my lawyer friend just told me the following: "First, the deft's ins co is not going to pay the 30k unless the pltfs sign a release. They cant take the money and then start checking assets or getting asset declaration. If the deft files bankruptcy, the pltfs can still pursue the ins coverage if they get the consent from the bk court. If they wish to pursue more, then they will have more to do in bk court. They will need to get the stay lifted and file suit in state court. If the deft files, it will affect the minor's claim. The minor wont be able to come back years from now and "surprise" the deft. Lastly, deft cant file chapt 7 more than once in I think a 6 year period." Please consult with a PI attorney in your area, maybe he might have some other options for you. :) Goodluck!

Wendy Ha Chau

Wendy Ha Chau

Posted

To protect yourself, make sure the defendant tortfeasor signs a declaration of no asset before signing the release. So it sounds like the best venue for you AND your son is to settle with the def's insurance and your insurance. Since your medical bills are probably going to be high as the 30k or more, the def's insurance company probably going to give you the 30K but will make you sign a release before signing it you need to make sure the def also signs the Declaration of No Asset. Demand the maximum policy limit. Then pursuit a claim under your own insurance for the maximum compensation.

Wendy Ha Chau

Wendy Ha Chau

Posted

Here is a link on bankruptcy filing and refiling bankruptcy Chp7 & also 13: http://www.nolo.com/legal-encyclopedia/chapter-7-bankruptcy-eligibility-29701.html

Asker

Posted

Thank you so much , this was more than helpful for me. However I was not driving a car. My son and I were crossing the street at the intersection. :( It has taken a toll on me since our family had experienced the same back in 2003 when my older brother , (then 25 yrs) was crossing the street at a marked cross walk and was struck by a vehicle and was in a coma for a few weeks with major head trauma. He succumbed to his injuries 2 months after the accident. so his death really affected us , even more so after my accident. It really took a toll emotionally.

Wendy Ha Chau

Wendy Ha Chau

Posted

My law office settled a case for a biker under the def's insurance and his UIM insurance as well. I think it's possible to get your UIM insurance to cover your loss. it doesn't hurt to try at the very least they just reject it. I don't see the difference or real distinction btwn the bicycle and a person being hit by a car. Have you attorney try getting it from your UIM insurance.

Wendy Ha Chau

Wendy Ha Chau

Posted

Correction: Not biker BUT a bicyclist /cyclist

Wendy Ha Chau

Wendy Ha Chau

Posted

Gee your attorney don't sound like he cares. You should probably get a new attorney... I'm not your attorney but at least I try to see every best possible means to help you out. I wish you success! I am so sorry about your situation. Just believe that it will all work out instead of being negative. Think positive. Def might not file bankruptcy... I can check to see if bankruptcy affects a law suit. I have some bankruptcy attorney friends.

Wendy Ha Chau

Wendy Ha Chau

Posted

AND I will pray for you. Good things happen when you keep a positive attitude or think positive. I believe you can. :) Let me get back to you what my bankruptcy atty friend says...

Asker

Posted

oh yes being positive is a must. I look at the bright side of things. I'm grateful that just minutes before the accident i moved my son from my left side to my right side just because I dont like him walking on the side of traffic. Had I not, He wouldve been the one hit the worst. But even more grateful that we are still alive and breathing. My brother wasnt so lucky... I am beyond grateful for that

Wendy Ha Chau

Wendy Ha Chau

Posted

You are a great dad!!! Yes please think positive. I'm sure at the very least you get the most out of the insurance companies if anything. :) ....and I shall keep you posted about the BK issue once I find out.

Wendy Ha Chau

Wendy Ha Chau

Posted

Yes!!! please keep a positive attitude. :)

Wendy Ha Chau

Wendy Ha Chau

Posted

Dear Asker: My bankruptcy atty friend wrote this: Def filing bankruptcy would affect the case. It would create an automatic stay and you can't do move forward with the case against him. But that's just the general answer. What kind of PI? Intentional tort is not discharge from BK, also what chapter ? 7? 13? If the judgement before the defendant filing bk, it is worse for plf. because it arises from a debt prior to the bk so it would be dischargeable. Plf. can always sue in bk on a non discharge-ability debts. Plf. should always file proof of claim for the judgment.

Wendy Ha Chau

Wendy Ha Chau

Posted

I hope that helps...

Edward Brandon Beckham

Edward Brandon Beckham

Posted

I agree.

Posted

Both of your injuries sound horrible--I'm so sorry this happened to you. You need to contact a local personal injury attorney ASAP (as the statute of limitations is quickly approaching).

Ms. Berjis is licensed to practice law in the State of California. The laws of your jurisdiction may differ and thus this answer is for informational and educational purposes only and is not to be considered as legal advice. Since all facts are not addressed in the question, this answer could change depending on other significant and important facts. This answer in no way constitutes an attorney-client relationship.

Asker

Posted

I retained an attorney but get the feeling that because of the insurance policy being so low that he just wants to have the easy way out

Malosack Berjis

Malosack Berjis

Posted

Then, honestly, he was not the right attorney for your case.

Malosack Berjis

Malosack Berjis

Posted

It would, really, be worth it for your to consult with at least one other attorney--know what I mean?

Asker

Posted

I agree. I have been keeping a journal of my injuries and rollercoaster of emotions I have experienced. kept detailed records , etc. I am not going to allow this man to live his life happily while he ruined mine as a result of his neglince

Malosack Berjis

Malosack Berjis

Posted

Exactly! And, the journal is a GREAT idea--I always encourage my clients to keep one, and it's amazing what a difference it makes when it comes to building and presenting their case.

Asker

Posted

I believe it will. I also dealt with alot of problems at school with my son as aresult. The drivers son was my sons former classmates. so that makes it harder. But I do not care about that.

Malosack Berjis

Malosack Berjis

Posted

It is understandable that such a 'relationship' would make things harder. However, what happened to you and your son is inexcusable (given the driver's gross negligence in texting while driving in a school zone). However, you and your son not getting the compensation that you both deserve would be an even bigger injustice.

J. Scott Dilbeck

J. Scott Dilbeck

Posted

It is also possible that the 30k liability policy is all the money that can be recovered in a cost effective way. You can certainly sue someone and get a judgment and execute on it but that is easier said than done. If they change jobs or change banks or move to a different state...getting money out of someone who doesn't have any is very difficult.

Asker

Posted

Malosack, that's exactly the way I feel .

Malosack Berjis

Malosack Berjis

Posted

So glad we're on the same page!

Asker

Posted

Mr Dilbeck, that is another issue and not to mention the driver filing bankruptcy. It should not be this difficult for a victim to be compensated but the laws are laws unfortunately

Wendy Ha Chau

Wendy Ha Chau

Posted

You well being and your son's well being comes first....above all. The driver is filing bankruptcy?! Are you certain? Maybe is bluffing. Probably best to have your attorney simultaneously put in a claim with your insurance and the tortfeasor's insurance, and also filed a lawsuit. That way you are protected since your statute of limitation expires in 11/13. Statute of limitation for personal injury in CA is two year. Which ever comes first, I say don't sign a release for all claims, just for partial claims, then have the defendant sign a declaration of assets. Maybe the driver is bluffing about filing bankruptcy. If he does, at least you have your insurance and his insurance. Sorry about your situation. Best of luck!

Edward Brandon Beckham

Edward Brandon Beckham

Posted

I agree with this attorney's comment.

Posted

I'm sorry to hear you and your son had such a horrific experience. From what you describe, there is both civil liability on the part of the truck driver and significant injuries which need both present and future medical treatment. You would absolutely be best served to retain an attorney to assist you prior to making any statements to any insurance representatives. Our office has significant experience with pedestrian accident claims and would be glad to try to help.

Nothing in this communication should be construed as creating an attorney client relationship. This is for informational purposes only. Attorney will take no action on your behalf unless and until a written retainer agreement is signed. There are strict time deadlines on filing claims and, as such, you are advised to consult with and retain an attorney immediately to file such claims timely or you will lose any right to recovery. Any testimonials or endorsements should not be construed as a guarantee, warranty or prediction of the outcome of your case.

Asker

Posted

Thank you, I will contact you within a day or so :)

Edward Brandon Beckham

Edward Brandon Beckham

Posted

I agree with this attorney's comment.

Posted

Your options are too numerous to discuss in this forum. You need to call a personal injury attorney in your area. You need to do this ASAP because there is a 2 year statute of limitations for this type of claim. That means, if you wait until 2 years after the event, you will lose all rights to file a lawsuit.

Edward Brandon Beckham

Edward Brandon Beckham

Posted

I agree with this attorney's comment.

Posted

I am sorry to hear about the accident. The statute of limitations in California for personal injury claims is 2 years. You should consult with personal injury attorneys without delay if you and your son are interested in pursuing a claim against the driver.

This information is not intended as legal advice or to create an attorney-client relationship between you and any attorney. Such information is intended for general informational purposes only.

Edward Brandon Beckham

Edward Brandon Beckham

Posted

I agree with this attorney's comment.

Posted

You have until the two year anniversary to either resolve your claim or file a lawsuit, which will give you an add'l 5 years. Your son has until his 20th birthday. Your auto policy may also offer coverage if the driver doesn't have enough insurance. You certainly need a lawyer due to the severity of your injuries.

Jeffrey D. Bohn
(559) 304-1549 direct line to me
www.jdbohnlaw.com
Statewide Attorney
Over 10 wins in 10 counties!
Million Dollar Advocates Forum

Asker

Posted

thank you so much

Edward Brandon Beckham

Edward Brandon Beckham

Posted

I agree with this attorney's comment.

Posted

You need to consult with a personal injury attorney as soon as possible. They will want to review the traffic collision report and get a more thorough description of your medical treatment and quality of life impacts.

It certainly sounds like you have a claim worth well in excess of the available policy limits, however, an attorney will be able to look for other avenues of recovery, including the possibility of getting some contribution from the driver.

A consultation should be free of charge and you will get a better idea of the services that the attorney can provide to you.

I am sorry for what you and your son are going through and hope that you are able to find the justice that you deserve.

This response applies to California Law only and does not create any legal relationship between the attorney and the person who submitted the question.

Asker

Posted

The driver admits fault, the insurance company is just waiting on a number . But since my injuries are significant, and I feel nothing has helped I am left wondering if I need treatment for the rest of my life. :(

Jeffrey Michael Padilla

Jeffrey Michael Padilla

Posted

As mentioned above and by others, there may be more available to you. I would urge you not to sign a release, even for the full policy limits, until you have consulted with an attorney. There is much to consider and often the release may contain language that could potentially bar you from pursuing other avenues of recovery against entirely separate defendants.

Wendy Ha Chau

Wendy Ha Chau

Posted

Yes do not sign the release. You need a declaration of asset from the driver that hit your car.

Edward Brandon Beckham

Edward Brandon Beckham

Posted

I agree with this attorney's comment.

Posted

It is not a coincidence or a conspiracy that every is suggesting you get to an attorney. You really need to retain someone to help you explore your options. Note that you likely have only a two year statute of limitations on your case which should run in November 2013. Don't wait any longer. What happened to you and your son is awful and I hope you are able to get properly compensated.

Edward Brandon Beckham

Edward Brandon Beckham

Posted

I agree.

Posted

Why don't you set up a consult with Ms. Berjis? Be sure to have your auto insurance policy declarations of coverage available for the coverage you had at the time of the accident.

Edward Brandon Beckham

Edward Brandon Beckham

Posted

I agree with this attorney's comment.

Posted

You need to promptly consult with an attorney. Many offices like ours offer a no cost consultation. You will need to determine what assets are available from the defendant and what coverages you have for uninsured motorist (same as underinsured motorist) . If the police came and confirmed the texting issue than follow-up with the investigating officer and the DA for criminal prosecution. You can recover additional monies through a criminal restitution hearing.

Posted

If you have Uninsured motorists coverage make sure that they are notified. Otherewise a lot more info is needed to comment.

David Ian Schoen

David Ian Schoen

Posted

From your additional information it appears that you located the other driver. Obviously that gives you more options, Underinsured motorist coverage if you or anyone else in your household has it, plus underinsured additional coverage under an umbrella policy if you have it. Alternatively there may be an action against the school if they should have provided crossing guards at that location or failed to set up a place where children could be safely dropped off without parking. Good Luck.

Edward Brandon Beckham

Edward Brandon Beckham

Posted

I agree.

Posted

Do you have auto insurance that might cover excess over the 30 K (underinsured coverage)? You do need to protect the statute of limitation a.s.a.p. unless you already settled for the 30 K.

Edward Brandon Beckham

Edward Brandon Beckham

Posted

I agree.

Posted

You still have some options to collect more than the policy max. It may require bringing a law suit personally against the driver. From what you have written, this option should be explored with an attorney that can review all of the facts and help you make the right descisions on how to proceed.

Edward Brandon Beckham

Edward Brandon Beckham

Posted

I agree.

Posted

Get a good personal injury lawyer with a low contingency fee.

Edward Brandon Beckham

Edward Brandon Beckham

Posted

I agree; always a good point made by Mr. Lassen.

Posted

You must call a personal injury attorney right away. You are going to have to go after the driver's assets and other liability insurance coverage that he might have. Obviously, you and your son are entitled to more than the $30,000 coverage available especially given your permanent injuries that you claim. A personal injury attorney will investigate the F150 truck driver and advise you of the right course of action. Best of luck !!!

Edward Brandon Beckham

Edward Brandon Beckham

Posted

I agree.

Posted

It is much more difficult to go after the personal assets of an individual responsible for your injuries. One other option is to file a claim with your own insurance company. I hope your recovery goes well. This is a tough situation for both you and your son.

Edward Brandon Beckham

Edward Brandon Beckham

Posted

I agree.

Posted

To supplement the excellent advise given you by my colleagues, a criminal prosecution should have been pursued and it would have entitled you at the prosecutor's expense to get an award of your economic losses (e.g., lost earnings, medical expenses). Whether or not it was illegal to text and drive then, the driving was reckless and thus criminal. Look to see if the driver was conducting business on someone's behalf. Lastly, complain to the Governor and your representatives in the State Legislature that stale State law (the same my entire 33 years in practice) should be radically upgraded to increase the minimum policy limits from $15,000 for a single victim and $30,000 for multiple victims per collision to something meaningful, perhaps 10 times that amount. Lastly, I cannot figure out the geography and actions you try to describe through your words "I parked my car before the light . Halfway through the crosswalk ( light was still green) an F150 truck making a left turn".

Edward Brandon Beckham

Edward Brandon Beckham

Posted

I agree.

Posted

Why have you waited so long to contact attorneys. If you do not file suit by Nov. 2013 you will lose your right to sue.

No attorney/client relationship is or shall be created by this response on Avvo to non-clients of The Law Offices of Norman Gregory Fernandez.

Edward Brandon Beckham

Edward Brandon Beckham

Posted

I agree.

Posted

First of all, I am very sorry that you and your son were injured so badly. Secondly, I would strongly suggest that you contact a Los Angeles based personal injury attorney to discuss this matter with. My law office and others here in the Los Angeles area has experience with these type of pedestrian accident claims. Most Los Angeles personal injury attorneys such as myself, provide a free initial consultation. Why not contact a couple of attorneys and then select the one you feel comfortable with? You really need to do something quickly due to the Statute of Limitations issue. Contact a personal injury attorney immediately.

Mr. Crosner is licensed to practice law in California and has been practicing law in California since 1978. The response herein is general legal and business analysis.. It is not intended nor construed to be "legal advice" but rather it is analysis, and different lawyers may analyze this matter differently, especially if there are additional facts not reflected in the question. Oftentimes the question does not include significant and important facts and timelines that, if known, could significantly change the reply and make it unsuitable. I am not your attorney until retained by a written retainer agreement signed by both of us. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here.

Edward Brandon Beckham

Edward Brandon Beckham

Posted

I agree.

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