I had a sleep and fall accident in January 2010 I had a spine surgery in 2012 due to my accident. The doctor gave me disability, i m only 28 years old. The defendants insurance company offered me the full policy which wasn't much. They waited 5 months before the trial date to settle this. Should I go on trial? How can I find out 100% if there is an umbrella under their policy. It's kinda suspicious the insurance company settled 5 months before trial.
You can demand that they provide you with proof of no excess/umbrella insurance - such as an affidavit stating such - and the insurance policy details.
I don't think somebody could answer the question "should I go on trial" without knowing much more about your case, and obviously whether there is any other insurance.
This is why it usually can be very helpful to have an attorney.
Best of luck.
Joseph L. Ciaccio is a New York attorney with the Law Offices of Joseph M. Lichtenstein, P.C. (medicalattorneyny.com). The answers posted herein are not legal advice and do not create an attorney-client relationship.
these are the types of questions you need to review with your lawyer.
It is not unusual for an insurance company to drag their feet before settling a claim as it can work to their advantage. Whether you go to trial is only a decision that you can make in consultation with your lawyer. Their are risks associated with going to trial. For example, a jury could come back with a verdict against you on the liability portion of the trial saying that you should have seen what it is that you slipped on, or that you should have avoided it. A jury could also find for you, but could award less than you have already been offered. Or, the jury could award a greater sum. It is all a matter of your risk tolerance, and what could be collected above and beyond the insurance money that has already been offered. With respect to finding out about excess or umbrella coverage, if you decide to settle the case, or even if you don't, your attorney should demand an affidavit from the defendants as to whether any additional insurance is available. If they say yes, you have more coverage available to potentially recover. If they say no, and you rely upon that in settling the case and later learn that there is, you could potentially vacate the settlement. It is to the defendants advantage to disclose all coverage available because it protects them from personal exposure.
New York Plaintiff's Personal Injury Attorney Serving NYC, Long Island, Westchester and the surrounding areas. The information provided herein is not, and is not intended to be, legal advice. The content herein is for information and educational purposes only, and is based on the limited information provided. Any information provided is not intended to, and does not, create any attorney/client relationship where none exists. For legal advice, please consult with an attorney. While this posting is made for informational purposes only for the AVVO community, to the extent one seeks to contact me based on the content herein, or that this may be viewed by some to be attorney advertising, please be advised of the following: *Attorney Advertising
This is why you hire an attorney. There is probably a lot that you are missing, including the amount of available coverage.
Your attorney should not be settling this case without an Affidavit of No Excess from the defendants, and I am sure s/he is not. Discuss what follows with your attorney. Only your attorney can decide if the case should go to trial. Sometimes a litigator will have to send a case out to a trial lawyer, like myself, if it doesn't settle for fair value. Your attorney knows what fair value is for your case.
I am curious, you only mention one defendant. Usually in New York a slip and fall premises case has at least as defendants the building owner and the management company. While the management company usually indemnified the owner in a slip and fall case, the owner often will kick in some "sweetener" to the settlement just to get things over with. Is the owner paying anything? If they tendered the whole policy (how much is "not much?"), they made a judgment that their chances of getting you on contributory negligence was not big enough to justify the cost of a trial because your injury, even with a lot of contrib, would still yield the policy limit. The keys here are an Affidavit of No Excess and see if the owner will kick something into the pot.
Best of luck
I am a co-author of WEITZ ON AUTOMOBILE LITIGATION: THE NO FAULT HANDBOOK. The opinions expressed in this answer are not intended to be taken as legal advice. These opinions are based on New York practice. I may be contacted at 212-553-9300.
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It is not uncommon for cases to settle shortly before a trial date. Your attorney should obtain an affidavit from the defendant that there is no excess insurance coverage available to you and that there is no umbrella policy as well. If the defendant has assets, there is nothing to prevent you from proceeding to trial and ideally obtaining a verdict that exceeds the coverage. You will have 20 years to collect unless the defendant files bankruptcy or remains insolvent.
The defendant is normally required to disclose whether there is an umbrella policy. The timing of the settlement is not unusual either so don't read anything into that fact.
The information provided herein is for informational purposes and should not be construed to establish an attorney client relationship. To establish such a relationship, the prospective client would need to meet with me in person, and have a detailed discussion about all the facts and circumstances surrounding your case.
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