This incident took place in Maryland. Can my son sue the defendant personally for any cost above the 25k insurance policy?
Question Details: The defendant was driving w/excessive speed, hit my son's car in the rear with such force his car was propelled into the curb and the vehicle flipped 3 times. My son has 13k+ in medical bills, approx 7k in lost wages and punitive damages. My son's attorney tells him the defendant only had 25k worth of bodily injury insurance coverage. Can my son sue the defendant personally for any cost above the 25k insurance policy? Does the attorney’s fees come off the top of the 25k or are the medical medical bills paid first and then attorney receives 1/3 of the balance?
Hello. I am sorry to hear of your son's injuries. The above response accurately outlines the rational for accepting a "policy limits" settlement - if the defendant has no assets (and with only $25K coverage, the chance of significant assets are unlikely), pursuing suit may leave him with little more than a paper judgment.
Your son should look at the written representation agreement (signed by him and the lawyer) to see how the fees will be deducted (generally, any contingency fee is taken off the top, although the fee arrangement is not set by law and may vary from attorney to attorney).
More importantly, your son should examine HIS policy to see if he carries uninsured/underinsured coverage. Thus it may be possible to get coverage from your own insurance carrier. Note that in Maryand, punitive damages are extremely hard to come by and unlikely to be awarded in an auto accident case based on negligence.
Although I am barred in the State of Maryland, this should not be construed as legal advice. The specific facts of your situation may change how these general statements apply.
Although I do not practice law in the state of Maryland, here are my initial impressions. First, the general rule is that a defendant may be personally liable for any and all damages above and beyond his or her insurance policy. However, the question then becomes one of assets. Does that defendant have assets that will provide for recovery in excess of his insurance policy? If not, you are unlikely to recover anything in excess of the policy despite being awarded a larger amount upon verdict. Second, the general rule is that the attorneys' fees are deducted from the total amount of the settlement/verdict, NOT the net amount following payment of medical bills. In any event, in light of these facts the client should remember that the decision to settle is HIS, not attorneys'.
