Will I automatically lose my case if the insurance claims accident is my fault?

UPDATED: Oct 2, 2022

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Will I automatically lose my case if the insurance claims accident is my fault?

I’m getting sued over an accident two years in which the plaintiff was not satisfied with the settlement my insurance offered to her. The plaintiff decided to pursue legal action against me personally for recovered damages, pain and suffering. Am I automatically going to lose this case since the accident has already been ruled as my fault? How can I make my assets and paychecks execution proof?

Asked on October 4, 2019 under Accident Law, Texas


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

If there was no prior court case, the accident has not been "ruled" to be your fault yet: the insurer's conclusion is not a legal determination of fault--it's just the insurer's opinion. So you could in theory defend yourself successfully, since nothing has been legally proven yet. That said, if the insurer felt you were at fault, they presumably had their reasons--i.e. the facts or evidence likely show your fault. Therefore, while you will not automatically lose, the odds are likely against you.
There is no way to make your assets and paycheck execution proof: under the Uniform Fraudulent Transfers Act, some version of which has been enacted or adopted by every state, once you know or have reason to know that you may owe someone money or be sued--as you know--any transfers or transactions other than for fair market value (e.g. selling something for what it is actually worth) are presumed to have been done to defraud the other person (the one suing you) and can be voided or undone. To oversimplify somewhat, you have to try and protect your assets before you think you might need to, because once you are aware of a legal threat (e.g. lawsuit) to them, it's too late: efforts to hide or shield them will be seen as fraud against the creditor or plaintiff. So you can't put assets or money in someone else's name unless they pay you fair value for what you give them; and if they pay you fair value, the plaintiff can go after what you were paid.
That said, there are some things you can do:
1) Contribute the maximum amount to a 401k or IRA: those retirement accounts are protected from execution.
2) If you are currently renting, keep renting--if you buy a house, a lien can be put on it, going after the equity in the home, but they can't lien your landlord's property.
3) If you need a new car, lease, don't buy: as with renting a house, you don't have to worry about them going after your property if you don't own the vehicle.
4) If you have existing debt (mortgage; credit card or student loan debt) increase your payments to it (i.e. make extra payments to the principal) if you have surplus cash (since surplus cash in the bank is something the plaintiff can go after): there is generally nothing fraudulent about paying off existing debts; paying the debt down faster benefits you in any event; and if the person who sues you wants to, let them try to fight it out with your bank or student loan lender or credit card company to get the money back from them.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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