Every so often, we get a call at our office from a person who was involved in a car accident months earlier, and then they get something in the mail from the other party. They are usually surprised because they thought the car accident was ancient history. Sometimes, it's a letter from an attorney who represents the other party and sometimes, it's a formal lawsuit. In most cases, the other party is alleging injury from the accident. Needless to say, this can cause great distress for most people, so here are some things to keep in mind if this happens to you.
First, you should know that a personal injury lawyer is not the person to call in a situation like this. You see, a personal injury lawyer represents people who have been injured in an accident and who are bringing a claim for those injuries. Now, if you are on the receiving end of the claim, then a personal injury lawyer is not going to be able to represent you. However, a personal injury attorney will often be happy to offer you some advice.
Next, you need to determine what exactly you received from the other party. Sometimes, people get a letter from the other party's lawyer and assume it must be a lawsuit. If you get a letter in the mail, you should realize that is not a lawsuit - it's only a letter. That being said, you should not ignore the letter. Contact your own insurance company or your insurance broker and let them know about the letter. Then send them a copy of the letter via fax, mail, email, or all three. If you send by email, make sure you get a confirmation from your insurance company that they received what you sent them. If you send by fax, print out the confirmation that indicates the fax was indeed sent and received.
Third, you may get served with an actual lawsuit. If this is the case, you will receive a packet of materials. It won't be a simple letter. You will probably see what appears to be lots of court forms stamped by the court. This is known as the "complaint" that was filed against you by the other party. All lawsuits start with the filing of a "complaint." This document makes general allegations, and most are form documents. There may be other papers in this packet you receive.
Once filed with the court, the complaint needs to be "served" upon the other party (you in this case). This "service" of the paperwork can be accomplished in several ways. Usually, an individual is served by a "process server" - a person who walks up to you and asks you if you are "Mr. Smith" and then hands you all the documents. Then this process server will file proof with the court that he/she served you. You then have a limited amount of time to file an "answer" to the complaint with the court. If you don't "answer" the complaint, the other party can petition the court to enter a judgment against you. Basically, if you don't answer, it's like forfeiting the "game."
Sometimes, you will get the paperwork in the mail. If so, you haven't technically been served properly but that doesn't mean you should ignore the materials you received. If you are served by mail, or personally served by a process server, you should contact your insurance company and/or your insurance broker and make them aware immediately. Send them a copy of everything you received. Your insurance company will then usually hire a lawyer to represent you and defend you against this lawsuit. You don't have to pay this lawyer. The insurance company is paying them. The premiums you pay your insurance company cover the cost of defense if you've been sued. Some of these defense attorneys work for outside defense firms, and some are in-house with your insurance company (that's what I used to do before I opened my own practice years ago). This attorney will file an answer on your behalf. The lawsuit can last months or years. Make sure you cooperate with your assigned defense lawyer and your insurance company. It is not only in your best interests to cooperate, but you are often contractually obligated to do so.
Hello everyone. This is Robert Mansour. I'm a personal injury lawyer in the Los Angeles area. In this brief video I want to discuss the difference between a claim and a lawsuit. Many times clients come to my office and they think that we are going to bring a lawsuit against somebody. In most cases we're not bringing the lawsuit against anybody yet. What we are doing is bringing a claim against the responsible party. In most cases what we are actually doing is presenting the claim to the insurance company for the responsible party. So that responsible party may know that you brought a claim but for the most part that's all they're really going to know. Everything is going to be handled by the insurance company for the responsible party and we deal with that insurance company and hopefully we're able to resolve the claim.
Now if we cannot resolve the claim then what we do is the client and the lawyer have to sit down and talk about filing a lawsuit against the responsible party. Let's say some guy named Bob causes you an injury and Bob has XYZ insurance company. We're going to bring a claim against Bob but we're going to present it to XYZ insurance company. They will pay for your injuries and your damages but only up to whatever their policy is for Bob. So if Bob has $15,000 of insurance that's all they're going to pay, the insurance company. The rest is really up to Bob and whether or not you want to pursue Bob is a whole other different story. So that's what a claim is.
But if you cannot resolve the claim then you have to sit down and talk about filing a lawsuit against Bob. That involves filing paperwork with the court, it's called a complaint, serving that complaint upon Bob, and then Bob is going to call his insurance company and say, "Hey, it's Bob, I just got served with a lawsuit," and the insurance company will then assign a lawyer to defend Bob in the lawsuit that you have brought against Bob.
So the claim is something that happens pre-litigation, before a lawsuit is filed. That claim 95% of the time those things resolve before a lawsuit is necessary. But every so often you reach an impasse in a case that cannot be overcome. Then the plaintiff has to file a lawsuit with the court that is served upon the defendant, the responsible party, and that person's insurance company usually provides that person with an attorney to defend them in this lawsuit.
I hope that helps you understand the difference between a lawsuit and a claim. A lawsuit also can be very financially and emotionally taxing, not that a claim isn't, but a claim is generally not as stressful to go through. I hope that helps to illustrate the difference between a claim and a lawsuit. If you have any other questions please feel free to contact my office. Thank you very much.
Some people are very curious what happens to the person who caused the accident. The truth is, nothing much ever happens to the person who caused the accident. Of course, if they were injured, they will be dealing with their own health care issues. If they were arrested for drunk driving or something else, then of course they will be dealing with that. However, if they were insured, then very little will probably happen. Their insurance company and your insurance company will likely want to take a "statement" from them to figure out what happened. Some insurance companies won't bother with that if liability is obvious. Some will insist on a statement from everyone and their dog regardless of how obvious the facts are.
If their insurance company accepts fault, then the other party is pretty much done. They will leave things to their insurance company to resolve. That's why they (and you) have insurance. If the party who caused the accident was deliberately underinsured, then they might have more to worry about. For example, let's say a very wealthy person gets the minimum auto insurance required by law. Then if your damages far exceed the other party's insurance policy, you can technically go after that person personally (to get more than the insurance policy). That's a long discussion for another day.
If the other party had no insurance, then your insurance will probably provide you with coverage as long as you had "uninsured motorist" provisions on your policy. If you don't have underinsured motorist coverage, then you can entertain pursuing the responsible party in court and get money out of them personally. You will likely have to file a lawsuit.
After the insurance company’s initial investigation of the incident, there is usually little or no contact between them and the person responsible for your damages. So to answer your question, they are most likely going on with their lives, hoping that the case will be settled by the insurance company. Their insurance rates will probably rise and/or their insurance company may ultimately dump them as clients.
If you want to discuss this further, please call (661) 414-7100 for further information or guidance on this issue.
Sometimes, filing a lawsuit and going to trial in your personal injury case is not the best course of action. In fact, after all the years I’ve been in practice (for both plaintiff and defense), I cannot remember a single time when my client or the client for the other side said they enjoyed the process and would do it again. No one walks out of that courtroom saying, “Gee that was fantastic! Let’s do that again!”
Going through litigation is a very difficult experience and is never fun. Sure, there might be the rare person who enjoys antagonism and the adversarial process. However, most people aren’t wired like that. It is intrusive, expensive, and frustrating to say the least. In most cases, the result is not what you would have wanted. Therefore, I always encourage my clients to thoroughly explore diplomatic solutions before they file a lawsuit.
Diplomatic solutions include negotiations with the insurance adjuster, lien holders, doctors, etc. Also, there are alternative dispute resolution (ADR) methods such as mediation and arbitration that should be thoroughly explored before filing a lawsuit. After filing a lawsuit, one should always keep their options open and entertain these alternative methods as well. Remember, you want to resolve your case on her own terms rather than leave it up to 12 jurors who don’t know you. If you settle your case, at least it’s your choice and you have some control over the outcome. Your expectations may be thwarted when it comes to a jury who doesn’t necessarily share all your opinions.
Sometimes my clients ask me how much time they have before a lawsuit needs to be filed. I explain to them that currently, California law allows them two years from the date of injury to file a lawsuit against the responsible party. This is known as the “statute of limitations.” Most cases resolve before a lawsuit is filed. Personally, I am a big believer in diplomacy, and I also like to save my client some money. Filing a lawsuit and engaging in litigation can be expensive and by nature, adversarial. Sometimes, settlements can be reached prior to that time. We may have to file a lawsuit to preserve the statute or if we find that we have exhausted other diplomatic means of settling the case. Keep an eye on that statute! If you miss it, you are likely out of luck.
Most personal injury cases are resolved prior to any claim being filed. Even then, most settle before a trial commences. There are many factors that can affect this, but the most important factor is whether or not there is a liability dispute or a huge difference in opinion regarding the case value.
by Robert Mansour
Robert Mansour is a personal injury lawyer serving Santa Clarita, Valencia,