Not So
Fast....Don’t Accept A Low Policy Limits Settlement Offer for your Catastrophically-Injured Client Until You Have Considered Alternative Theories of Liability For Finding Additional Insurance Coverage
by Kevin I. Goldberg You are sitting at your desk when the
phone rings with a new potential case. The individual on the phone informs you that the potential client suffered cat- astrophic injuries as a result of a recent automobile accident. Unfortunately, you learn that the driver of the vehicle that struck the potential client drove a car from the late 1980s at the time of the accident, and you immediately suspect that there may not be adequate insur- ance to fully and properly compensate your client for his losses. You know that if adequate insurance coverage can be located, then the client can be fairly compensated for his losses so that he can live as normal a semblance of life as possible in spite of his injuries. Conversely, if adequate insurance
coverage cannot be located, then this client and his family will be victimized a second time by having to suffer the losses that come along with catastrophic inju- ries without fair and proper economic compensation paid by the negligent party. Therefore, lawyers representing catastrophically-injured clients need to be prepared for this call, and need to be ready, willing and able to investigate all possible avenues of recovery. The rep- resentation of catastrophically-injured clients requires that the attorney be ready to invest a significant amount of time, money, and brain power to locate and identify all avenues of potential recovery. This article explores causes of action and theories of liability that should be considered by practitioners to maximize potential insurance coverage, and to iden- tify potential defendants with sufficient amounts of coverage to fairly compensate the catastrophically-injured client. This article will focus on the follow-
ing potential theories of liability: (i) Suit against the adverse driver, (ii) Suit against the employer of the adverse
Summer 2008 Trial Reporter 9
driver, (iii) Uninsured Motorist Claims (iv) The Workman’s Compensation Claim, (v) Negligent Entrustment Claims, (vi) Product Liability Claims, (vii) Negligent Roadway Maintenance/ Negligent Roadway Design Claims, (viii) Medical Negligence Claims, (ix) Dram Shop Liability Claims, (x) Third Party Bad Faith Claims, and (xi) Claims Against Insurance Agents. Initially, we will address what you need to do in your preliminary fact-finding investigation.
Preliminary Fact Investigation
A complete investigation of the car
crash should be completed as quickly as possible. Evidence such as skid marks
on the roadway, property damage to vehicles, and the interior condition of vehicles can disappear shortly after a crash, and it is therefore imperative that the fact investigation be done immedi- ately. If possible, the attorney should visit the site of the accident himself. An investigator can be retained to obtain the basic facts of how the accident oc- curred, to take witness statements, and to ascertain additional facts that the catastrophically-injured client and their family may not be aware of themselves. Things that should be considered in this initial investigation include: (i) How did the accident happen?; (ii) Was the use of alcohol or drugs a factor in the
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