Health Emergency -Wrongful Death

[LegalInquirer]

Jurisdiction

California

My father had a massive heart attack (cause of death) while driving and ended up crossing over the road and having a head on collision where the other driver ended up passing weeks later because of injuries. There were no known heart conditions or Drs warnings of driving etc.

My mother is now being sued and getting threatening letters about not having umbrella insurance, asking for how much she has in assets and telling her what her home is worth (insinuating they will take it). We are filing for dismissal, but she has been freaking out for months now about losing her house I was wondering if there was anything she could do (legally) to protect her house (besides just the homestead exemption).

She also is thinking of moving out of state (and was prior to lawsuit); could she sell her house, buy a new one elsewhere and gift the equity etc.?

Any advice/tips would help. We think the law is on her side, but obviously the fact that possibility sits out there has left her a wreck and not even able to fully grieve.

 

[Zigner]

I am sorry about the passing of your father.
Your mother should turn this information over to her auto insurance company. They have a duty to defend. Your mother would likely be wise to seek out an attorney of her own to review the matter.
You are not an attorney; you should not be filing anything. That is not meant to be harsh, it is simply a legal reality.

 

[Tax Counsel]

My mother is now being sued and getting threatening letters about not having umbrella insurance, asking for how much she has in assets and telling her what her home is worth (insinuating they will take it). We are filing for dismissal...

Your mother has an attorney representing her in the lawsuit, right? At the very least the insurance is obligated to defend against, as Zigner already pointed out. While motions to dismiss are frequently filed at the start of a lawsuit, not a lot of them get granted. What are the grounds for your motion to dismiss? If it was a claim that your father wasn't at fault in the accident because of the heart attack that motion will probably be denied. The determination of fact in a lawsuit is for the jury to decide, not the judge. Moreover, even if the case is set without a jury demand, the judge would at a minimum need to hold an evidentiary hearing on the issue of causation. You can think of that as akin to a mini-trial.

She also is thinking of moving out of state (and was prior to lawsuit); could she sell her house, buy a new one elsewhere and gift the equity etc.?

The lawsuit is already filed and will continue whether she moves or not. If she moves she'll have more expenses in traveling for hearings, the trial, etc should those events occur. Bear in mind that any judgment the plaintiffs get in CA may be domesticated in whatever new state she resides and the plaintiffs can proceed to collect under the laws of that other state. Gifting property to her kids or whomever else may result in a transferee claim against the persons receiving the gift, requiring them to return that gift to your mother or your father's estate, at which point the plaintiffs could then proceed to claim those returned assets. So before she does the move, she should talk to her attorney about what effect that will have in the litigation.

 

[zddoodah]

My father had a massive heart attack (cause of death) while driving and ended up crossing over the road and having a head on collision

When did this happen?

My mother is now being sued

So...a lawsuit has actually been filed with the court? Seems clear that the answer is yes. Does your mother have an attorney representing her? By the way, in what capacity was she sued? As an individual? As personal representative of your father's estate?

We are filing for dismissal

What does this mean? Demurrers (that's the term used in California for what most of the rest of the country calls a "motion to dismiss")? A motion for summary judgment? Something else? Were you also named in the lawsuit?

I was wondering if there was anything she could do (legally) to protect her house (besides just the homestead exemption).

She probably doesn't need to, but at this point, there's nothing she can do.

She also is thinking of moving out of state (and was prior to lawsuit); could she sell her house, buy a new one elsewhere and gift the equity etc.?

No reason to think that she can't do those things, but why would she want to give away the proceeds?

If you answer the questions I've asked, I'll have some further thoughts. However, for now, I'll tell you that I've been involved for more than three decades in the collection of judgments in California. Not only have I never seen a person's personal residence sold to satisfy a judgment, I've never even seen anyone try to do that. Depending on the county where the home is located, it would range from unlikely to nearly impossible that a court would issue the necessary order to allow something like this.

 

[Redemptionman]

If it was me, I would not be satisfied with an insurance attorney. If I was being sued and had the funds then I would hire a great external firm to defend it. I assume you all have state mins or something other than what will satisfy the other party. Typically the person can collect your limits then turn to their own insurance to collect UIM claims. I would not freak out unless you have a lot of cash or liquid assets then they are not going to come after you personally for the money. This is a perfect example of why you should carry enough insurance in liability limits to cover an excess judgement where your assets are at risk.

Good luck with it.

 

[Tax Counsel]

If it was me, I would not be satisfied with an insurance attorney. If I was being sued and had the funds then I would hire a great external firm to defend it.

Why spend the money for that until it is actually necessary, e.g. the insurance pays up to the policy limit and bows out of the lawsuit or the insurance company attorney proves to be a dud? Typically what you pay your own lawyer in defense is not recoverable from the opposing party and it's not hard to rack up thousands of dollars in defense should it get past a demurrer (which, as Z pointed out, is CA's term for what in most states is motion to dismiss). Even if you are willing to pay that cost rather than take free representation from the insurance company, you first better make sure that doing so will not result in the insurance company denying payment should the plaintiff prevail. Bear in mind that some insurers actually hire a "great" attorney or law firm to defend the case. You won't know how good or bad the attorney is until you see the work product. Why reject what might be a great attorney for free and instead pay thousands of dollars to hire an attorney who may end up doing nothing more than the insurance company lawyer would do? IMO hiring your own lawyer to defend right at the start is not a logical thing to do if your goal is to save as much money overall as you can.

 

[Tax Counsel]

This is a perfect example of why you should carry enough insurance in liability limits to cover an excess judgement where your assets are at risk.

This part I agree with. One shouldn't just take the minimum limit policy if he/she has significant assets or income that may be attached should the judgment exceed what the insurance company will pay. The extra premium you pay for the larger policy limits will be extremely valuable should you end up at fault in a high damage collision. When there are significant injuries as a result of an accident the medical costs alone can be huge.

 

[zddoodah]

Bear in mind that some insurers actually hire a "great" attorney or law firm to defend the case. You won't know how good or bad the attorney is until you see the work product.

I agree with everything you wrote, but this bears particular emphasis. Not only is it a myth of nonsensical proportions that attorneys hired by insurers to defend their insureds are somehow automatically inferior, the attorneys who handle these sorts of cases on a regular basis understand how the cases work - both procedurally and substantively. The implication that, no matter what, one "[sh]ould not be satisfied with an insurance attorney" is completely absurd.

 

[welkin]

My father had a massive heart attack (cause of death) while driving and ended up crossing over the road and having a head on collision where the other driver ended up passing weeks later because of injuries. There were no known heart conditions or Drs warnings of driving etc.

This situation, if described accurately, would fall under the California sudden emergency doctrine and would not attach negligence or fault to the driver.

The doctrine require that in order to avoid liability under the sudden emergency doctrine, the defendant must show:

He or she suddenly became physically incapacitated;
The incapacity was not reasonably foreseeable;
The incapacity rendered the defendant unable to control his or her vehicle; and
The accident was the result of a loss of control resulting from the incapacity.

A good attorney should be able to prevail and win such a case.

 

[Redemptionman]

Not all law firms who represent insurance companies are great firms, some are good some are bad. It depends on how much the OPs insurance coverage is and what their estate is worth.

I guess you could wait and see but I would only do that if they proceeded with seizing assets or pushing to trial. It doesn't matter anyway they all have a duty to settle for policy limits of your liability carrier and the UIM carrier. I doubt they come after you anyway which is what I said from the beginning.

 

[Tax Counsel]

Not all law firms who represent insurance companies are great firms, some are good some are bad.

And not all private counsel you hire on your own are automatically better than you'd get with the insurance company lawyer. The difference is you don't pay the insurance company lawyer while you see just how good or bad the lawyer is, while you do pay the bills of your own lawyer while you see just how good or bad that lawyer is. Again there may be a point where getting a lawyer at your own expense is necessary or at least the better option. But the outset of the litigation is jumping the gun and potentially a lot of unnecessary expense.

It depends on how much the OPs insurance coverage is and what their estate is worth.

I'm not sure that "it" in that sentence refers to. The choice of lawyer the insurance provides is not contingent on those factors. But those factors do figure significantly how the case proceeds, whether it's the insurance company lawyer or some lawyer you hire yourself.

I guess you could wait and see but I would only do that if they proceeded with seizing assets or pushing to trial. It doesn't matter anyway they all have a duty to settle for policy limits of your liability carrier and the UIM carrier. I doubt they come after you anyway which is what I said from the beginning.

(Bolding added). In most cases your last sentence that I put in bold is the outcome of vehicle crash personal injury settlements, especially where the insurance policy is the only good source of funds the defendant has to compensate the plaintiff. If that's likely going to be the outcome whether it's the insurance company lawyer or a lawyer you hire yourself, I don't understand your earlier insistence on hiring an attorney at your own expense from the outset. In my view that's just throwing money away. You end up paying a lot in legal fees for absolutely no difference in outcome in that situation. So why not start with the insurance company lawyer first and see how it goes? If you need a lawyer later that you pay out of your own pocket, you can switch later after you know how good the insurance company lawyer really is at handling your particular case.

 

[Redemptionman]

I have known good firms and I have known bad ones, I can tell you the great trial attorneys are the ones who bill $700-$900 per hour and have a history of winning. The insurance companies know who they are and how they operate. Most times they will just lay down for them, I think all this is for not anyway. I do not know of anyone who has had assets frozen and seized from a personal injury claim. Usually the parties will settle out for whatever the limits of the policies are. Almost 100 percent of the time do they not go after the at fault driver personally even though they might be named in the suit personally. I would still hire a private attorney when the time comes if I was faced with an excess judgement is all I was saying. You can try to analyze every comment I make but it doesn't change the fact that most time insurance attorneys are going to protect their insurance company more than their insured. In most cases.