Any lawyers out there that could offer some pointers? My mother is being sued.

[MiniMe]

DU has also been wonderful about offering advice about things. I would like to ask my fellow DUers for some advice on this situation.

My mother, who is 79 and in very good shape, was in a car accident last April. It was raining like crazy, and my mother hydroplaned and rear-ended the car in front of her. The car in front of her was a taxi with a passenger in the back. Mom and the back seat passenger were transported to the hospital. Mom was fine by the way, just sore. The police came and took an accident report, and it was determined by the police that Mom hydroplaned when she tried to stop. No question that the accident was her fault, but that was what happened.

The other woman in the back of the taxi was treated at the hospital, and then released. The woman has had chiropractic treatment, and it still having pain in her back and neck. X-rays and MRI's etc have been done on the lady and they can't find anything wrong with her. I think Mom's insurance company (Progressive) has determined that any further treatment is not warrented because her pain is not due to the accident. So the lady got a lawyer and decided to sue my mother. I think at first, they started with the insurance company, and Progressive told my mother that the other woman was sueing and gave her the name of one of their lawyers. Mom had talked to the lawyer, and hadn't heard anything back for a while.

Fast forward to yesterday, Mom was awakened at 6am by a process server by him pounding on her front door. Mom works part time and is very active for her age, if you didn't know she was 79 you wouldn't guess it. And while she is out at times, she is also home a good amount of the time.

So now that I have given you some of the background, here are my questions:

1. Shouldn't they be dealing directly with Mom's insurance company instead of her directly?

2. WTF with waking her up at 6am, she wasn't trying to avoid them.

3. She called the lawyer from the insurance company, but hasn't heard back yet.

4. What should her next steps be?

I realize that necks and backs are sensitive things, but I don't quite understand what she is suing for. Any and all suggestions would be appreciated.

[graywarrior]

1. Do not use a lawyer from the insurance company

She needs to find her own lawyer....now! Ask around, don't take just anyone. But get one.

[Th1onein]

2. Wait a minute here.

Shouldn't they sue the insurance company first? I mean, that's what insurance is for. And it's the insurance company that's refusing to pay her claims.

[graywarrior]

4. They shouldn't deal with any insurance company

Once they open that door, anything they do or say will be used against them even by their own insurance company. I went through that a few years back. I should never had made a statement to my insurance company. Things get complicated and then you're the enemy. I had to fight my own insurance company for a settlement and it was really nasty.

[timeforpeace]

8. Can you elaborate on that experience? Sounds pertinent to the OP's situation.

[Sanity Claws]

10. Actually this is bad advice

Graywarrior,
I'm sorry for your experience. However, failure to provide a statement to your insurance company will be construed as a failure to cooperate and invalidate coverage. You don't want this to happen.

Even if you are at fault in the accident, the insurer has a duty to represent you. Further, the attorney appointed to represent you regarding the accident has a duty to represent you, not the insurance company. That means if the attorney learns things from you that may be contrary to the insurer's interest, your statement is covered by attorney-client privilege and he cannot divulge it to the insurance company. If he does, he is in violation of his duty and the client could sue him, as well as file a bar complaint.

[renate]

16. that is super useful information

That's the opposite of what I would have expected--I would never have guessed that the attorney's first responsibility would have been to the insured person and not to the company.

Thanks for the info! :thumbsup:

[treestar]

24. No they sue the person, but the insurance company pays for her

defense.

[treestar]

23. Mean Insurance Company likely has a clause letting them pick the defense

lawyers. But they pay for it.

[Libertas1776]

3. Why is she suing? Well, its very simple...

whip-lash = whip-cash. She wants money, plain and simple and she will do anything to milk the situation, even though all her tests, scans come back negative.

[Sanity Claws]

5. My understanding

1. Suit must be filed against the driver, not the insurance company. Some states allow direct action against the insurance but that is the exception, not the rule.

2. Service of process. I agree that she should not have been served at home at 6 PM. The plaintiff should have talked to the attorney for the insurance company and asked if he was authorized to accept service of your mom's behalf or if she was willing to accept service by mail. That is the civilized way to do things.
The only exception is if the statute of limitations is close to running. Then you effect service as fast as you can. I don't know where this happened but service at 6 AM is a good way to get someone before the house empties out for work and school.

3. She has to tender the defense to the insurance company and make sure she creates a record of it. I'm glad to hear that she contacted the insurance co.'s attorney but I think she should also directly contact the insurance company immediately via email or certified mail return receipt requested and let them know she has been served. She has only 20 days to answer the complaint.

4. Her next steps should be to make sure the insurance company is aware of service. See #3 above.

I hate to contradict a fellow DU'er but I would not incur the expense of a personal attorney at this point, particularly if she is not wealthy. The insurance company has a duty to represent her, including appointing an attorney to represent her in this litigation.

BTW, I am an attorney and did a little bit of insurance defense work early on in my career.

[MiniMe]

7. Thannk you so much for you advice.

She is not wealthy in today's sense of the term wealthy, but she does have some money. She isn't hurting, we'll put it that way. We are in Maryland and getting a snow dump today. I think Mom said that there was a trial in February, I kept telling her that she had to let the insurance company know, Mom for some reason wants to deal with the lawyer. I'll make sure she contacts them, in writing.

[Sanity Claws]

9. Trial in February?

When was she served?
I can't imagine trial being scheduled two months out. Some jurisdictions hand out scheduling orders with a trial date when suit is filed. However, they tend to be at least a year out.

I think she misread something. Regardless, she should make sure that the insurance company is aware of the lawsuit immediately.

Good luck!

[MiniMe]

11. She was served yesterday morning

It is very possible that she misread something. I just called her and told her that she needed to send a letter to the insurance company return receipt requested, and to include a copy of the summons in it.

The insurance company had sent her a letter and gave her a lawyer's name to contact in case she got served. She contacted the name they gave her, and that lawyer told her that they had forwarded her file to somebody else. I told her to make sure the insurance company was aware of that too.

Thanks so much for your response.

[Sanity Claws]

12. The point is to have a record of the contact that she told them of service

Fax would also work, as long as she ends up with a transmission receipt.
If she talks to someone at the insurance company, she should take down their name and note date and time of the contact.
She should follow whatever instructions the insurer gives her.

[MiniMe]

25. Well, the lawyer finally called Mom back

I told her to make sure to call the insurance company and get the person's name, and write down the time that she talked to them. Mom of course doesn't think it is necessary to call them, and I told her to just do it to cover her butt.

The lawyer already had a copy of the suit, and started working on it. She figured that she didn't need to call Mom back. She is trying to settle the case, and if she can't, it will be referred to another lawyer for trial. Mom is convinced that she is getting sued because of her address. The city is considered a "rich" address, and some parts are. But Mom lives at the edge of the area, and not in the "rich" section.

The lawyer said that she has until January 4 to file. I'm betting that due to the timing of the suit, they are hoping that they won't get an answer to the suit.

[Laelth]

6. Here in GA, I would have to have your mother served.

Time of day of service is irrelevant. Sounds like everything worked properly.

Here in GA, your mother's duty would be to inform her insurance company right away that she had been served. If she didn't (here in GA), the insurance company might not have to cover her losses in the event of a successful lawsuit. Your mother is the proper party to be served. The Plaintiff can't sue the insurance company. The insurance company didn't do anything wrong.

Again, all of the above applies to GA only (the only place I am licensed to practice). Consult an attorney in your state to be sure.

:dem:

-Laelth

[MiniMe]

13. Thanks,

but if my 79 year old mother fell down the stairs or something at 6am when she was half asleep, I'm afraid that I would have to sue you. Mom lives alone in a big house.

[Laelth]

14. Smile.

You'd have to sue the Sheriff's Department, I am afraid, and you'd probably lose. Attorneys don't tell the Sheriff when to serve. The Sheriff serves whenever he or she chooses.

:toast:

:dem:

-Laelth

[ChoppinBroccoli]

15. A Couple Of Answers For You

First of all, regarding the service on your mother, if she was being served with a copy of the Complaint, then it was OK. The Complaint officially STARTS the legal proceedings (until a complaint is filed, it's all considered informal "negotiations"). Once the legal process is started, if ANY party is known to be represented by counsel, NOBODY can contact that person directly.

Now, in regards to cases like this one, where there is insurance involved, the insurance companies are required to "subrogate." What that means, is they are required to "step into the shoes" of the person they insure. That means the insurance company will defend the claim with their own lawyers because they have "subrogated" to your mother's rights (meaning, again, they have stepped into her shoes and are defending the claim as if they were her). This is a good thing for your mother. Insurance company lawyers are generally better than some Joe off the street (again, not always, but generally--and I can say this as one of those Joes on the street who often has to take on insurance company lawyers). Another good thing about having insurance company lawyers is the fact that they deal with these kinds of cases every single day, and therefore have access to their own medical professionals, etc., to evaluate the Plaintiff's claim. Yet another benefit of having the insurance company defend the case is that they generally will only negotiate in terms of your mother's policy limits (meaning if they choose to settle the case, your mother won't have to pay out of pocket--her insurance policy will pay the settlement). What happens between your mother and the insurance company after the case is over is an entirely different question (she should probably expect to get dropped or have her rates jacked up through the ceiling), but as a rule, the policy will cover whatever settlement is reached.

Here's what your mother needs to do going forward. Since she's been served with a copy of the Complaint, she needs to forward that Complaint to her attorney (the insurance company's attorney) right away. An Answer to the Complaint MUST be filed within 28 days from the day she received it (if no responsive pleading is filed within the time limit, the Plaintiff will win by Default), so the lawyers need the Complaint ASAP in order to start working on an Answer. If she's having no success reaching them by phone, have her write a letter and include a copy of the Complaint with it, and either mail it or fax it to their offices. And as I said above, now that legal proceedings have officially begun, she is not to be contacted directly by either the Plaintiff or the Plaintiff's attorney. If somebody DOES contact her, she should do nothing more than tell that person that she is represented by counsel, give the attorney's name and phone number, and advise that person that they should speak to her attorney. And not ONE WORD more that that.

The key going forward is to always keep her attorneys in the loop and informed as to what is going on. Yes, attorneys are very busy people (particularly ones who work for big companies like insurance companies), and yes, they do forget/fail to return phone calls from time to time. She needs to be persistent. If she wants to speak to her attorney, she should make it so uncomfortable for that attorney to ignore her that he/she returns your mother's calls just to get her off his back. Sometimes being a pest is the only way to spur people into action. I know some older people have a problem with "being a bother" or whatever (my parents and grandparents are JUST like this), but if she lets her defense languish, the case could slip away from her.

Speaking as someone who doesn't do a lot of personal injury cases, but DOES have extensive experience in the legal field, I would say that it doesn't seem likely that this Plaintiff is going to get much in terms of a settlement. While soft tissue injuries are always a touchy-feely kind of thing, because you can't really pinpoint them, the fact that there is no evidence of physical injury is going to sink this person's hope of getting a huge payday. This Plaintiff will likely get a few bucks for his/her pain, and his/her PROVABLE medical bills and lost wages from work will all be compensated, but it's EXTREMELY unlikely the dollar amount will exceed your mother's policy limits. Sounds to me like it's going to be over pretty quickly, with a settlement for a couple thousand bucks. I doubt any competent Plaintiff's attorney would allow this case to go to trial. The reason: the key thing you have to prove in a personal injury trial is you have to prove INJURY (and without any medical records to show an injury, that's going to be tough to do).

Tell your mother to relax. This one's not going to be a big deal.

[renate]

17. you rock!

Isn't DU wonderful!? I love the way that people here help each other. :hug:

[MiniMe]

18. Thank you soooo much

I agree with the other poster, you rock! I love all my friends on DU for help like this, it helps immensely.

[TorchTheWitch]

21. states vary on when the Answer needs to be filed

In PA it has to be filed in 20 days. The Complaint needs to be faxed immediately to Progressive with Mom keeping proof of when this was done and MAKE SURE that Progressive's claim number is on there so there's no delay in directing it to whoever needs it. I used to work for Progressive in claims and they practically can't function without the claim number. They'd eventually figure it out without the claim number, but time is of the essence here.

I agree that Progressive will settle and it will be a pretty paltry amount... basically they'll throw some money at the plaintiff just to close the file and be done with it. Having worked at Progressive I have to admit they're good at settling these kind of cases for essentially peanuts. When I worked for them they only had policies for high risk drivers which means more really bad expensive accident cases to settle or try. Through that they've long since learned that paying better for very good attorneys saves them money in the long run since the most money is lost through settlements and trials.

As long as Mom gets the Complaint to Progressive right away so an Answer can be filed before the deadline she's really got nothing to worry about other than the possibility of her premiums going up just because she had an at-fault accident. She may in the future have to give a deposition but I doubt it will get that far.

[Blue_In_AK]

19. Your mother would be the named defendant,

in this instance, but her insurance company should assign an attorney and pick up the costs of the lawsuit. As named defendant, they would need to serve her; however, serving her at 6:00 a.m. seems a little over the top.

[dkf]

20. And get her some better tires.

Certain ones are supposed to help with hydroplaning.

[treestar]

22. Typical personal injury claim

The process server served the lawsuit on her. None of the rest of it will be like that. The insurance company lawyer will defend her.

[hayu_lol]

26. Since this was written up that the accident was caused by...

hydroplaning, then a battle of wits ensues. Hydroplaning is caused by excessive speed on water over pavement. Attorneys will have to hash that one out to determine an answer. Sometimes you can hydroplane at under 5 mph. 'Too fast for conditions.'...as they existed at that particular moment in time.

As to process serving: Had my own part-time business as a process server in CA. Used to do the bulk of my service from about 5am Sunday to 8am Sunday. As has been noted above, people tend to be home on that day at that time.

In CA, police or sheriffs do the criminal services. Ordinary process servers can be anyone--sometimes they are registered and sometimes not--and they handle the financial stuff/accidents lawsuits and the like.