ShouldI get an attorney if I am being sued for a car accident that my son had which resulted in a fatality?

This is for my son but he is on my insurance. He hydroplaned in heavy rain and had an accident. Negotiations have failed and we’re now being sued for the wreck; a man died. We were not charged. We need to know what to do at this point. Do we trust the insurance company lawyer? They offered the policy maximum of $100,000 but the other side refused it; now their after me, my insurer and DOT. My son has tried to hurt himself. We’re a very poor disabled family living on SS and a workers comp annuity. Can my annuity be taken? If so, can I file bankruptcy to protect it? And how do I get my son the help that he needs so very badly? His doctor has been giving him expensive antidepressant drugs (about $1000 per month;my insurer paid its max $1000 for him). I’m in Lumkin County, GA.

Asked on July 13, 2010 under Accident Law, Georgia

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

I am so sorry for your troubles. Lets take each issue one at a time.

From your question I am assuming that the insurance company has, as required under your policy, hired an attorney to represent you in this matter.  Understand that even though the attorney was hired but the insurance company, ethically he represents YOU and YOUR SON and NOT the insurance company.  They are under a duty to defend you to the best of their ability and are subject to malpractice if they do not.  The insurance company is obligated to defend you and indemnify you up to the limits of your policy (which can be more in cases of wrongful death depending on state law.  Ask the attorney assigned to your case or your insurance broker).

Now, the reason that the other side may have refused the money at this point could be strategic because of the other parties they intend on suing.  They do not want to settle until after the "discovery" phase of the litigation and all the facts are in, so to speak.  It does not mean that they not settle for the policy tendered once they are aware that there is nothing more to get from you, if that is the case.  Besides your SS and Comp Annuity, do you own a home?  SS benefits are generally exempt from judgement creditors as are workers comp benefits.  I would double check your state laws.  You sound as if you would be able to get some advice from legal aid or legal services.  I would go down and check with them as to this and bankruptcy as an option, but not just yet, as you need to have a judgement to discharge and you don't have one against you at this moment. 

As for your son, how old is he?  Is he an adult? Can he apply for medicaid help?  You need a new MD, one that can work within your plan.  Try having him go to the Department of Social Services.  And try the counseling benefit of your plan rather than just having him be prescribed drugs.  If he tried to hurt himself see if you have in-patient care.  Good luck to you all.


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