I don't practice in your state. Generally speaking, whether to settle for the at-fault driver's insurance limits depends on whether the at-fault driver has other assets from which you might recover, or whether another party with a deeper pocket might be vicariously liable for the at-fault driver's negligence. Before you settle, get satisfactory answers to questions like: is the defendant rich?
is there any other insurance policy which might provide coverage (CGL? Homeowner's?)
was the defendant acting within the scope of his employment at the time of the accident?
was the defendant overserved at a bar before the accident?
did an overhanging tree from private property obstruct the defendant's view and contribute to the accident?
A good personal injury attorney in your area can help you answer these questions.
To your question about the repurcussions of filing suit: If liability is clear and your damages clearly exceed the policy, there is little risk that you will recover less than the policy limits. Rather, litigation costs may eat into your net settlement proceeds from the bottom-up. If your damages are severe, though, the potential benefits probably outweigh the costs.
You can sue the responsible parties for more than the coverage limits. You usually cannot collect on the third party insurance and then sue as a release and waiver of claim is usually required to settle. You should contact a lawyey about the viability of suing in excess of the insurance or to see if there is other insurance that you are not aware of. A lawyer can do some research to determine if the at fault party has assets to collect above the insurance or if it makes sense to get a judgment against the party and try to make a garnishment of wages or other claim. All of this needs to be done in time to preserve the limitations period in your area so call a lawyer in your area and at least consult about your options.
Mr. Normand is licensed to practice law in Florida. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within 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. Mr. Normand strongly advises the questioner to confer with an attorney in your state in order to insure proper advice is received. It is strongly recommended that you consult with a Board Certified Civil Trial Lawyer. Florida Bar Board Certification is a mark of specialization and ethics that must be earned. Although any lawyer can claim to be an expert in any field of law, only a small percentage of lawyers are Board Certified as specialists. It usually cost no more to hire a Board Certified Civil Trial Lawyer so protect yourself and hire a State Bar Board Certified Lawyer.
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