Personal injury Library

Can I Settle and Then Sue the Defendant?

Settling with the insurance company following a fatal car wreck can have instant appeal but long term consequences. Here's what you need to know:

Many people who have lost a loved one in a fatal car accident case soon find themselves contemplating an important question: Should I accept a settlement from the offending driver's car insurance carrier or not? However, when dealing with fatal car accidents in particular, accepting a settlement without consulting a professional can be the biggest mistake you can make. In this article, we'll explain:

  • How timing is everything in these cases.
  • How leverage is a big factor in these cases.
  • Scenarios wherein settling is definitely bad.
  • Scenarios in which settling with the liability carrier is, in fact, the right thing to do.

A Little Background Insight

First of all, what exactly is a settlement? When you settle a case, you are effectively selling your right to sue (or to continue your lawsuit). They give you money and you waive the right to pursue them in court. This process of giving up your right to bring further legal action is called "releasing the defendant from liability," which, of course, will feature a signed document called a "release." You've probably heard of most of these terms, but you may not have ever considered their true implications. So when you take a settlement payout from an insurance carrier, you sign a release, and this release absolves the defendant of further liability.

But here's the tricky part... You're not releasing the defendant driver's insurance carrier, you're releasing the DEFENDANT himself. So by taking his insurance company's offer, you're essentially saying that you never intend to get anything else from the wrongdoer who took your loved one's life. You should only ever let that person off the hook when you have gotten full legal satisfaction from them, and not a moment sooner.

It's All About Leverage

When the defendant driver who killed your loved one bought their insurance policy, they were buying a bullet-proof vest to shield them from claims like yours. They didn't want to cause an accident, get sued, and have someone take away all of their possessions. In some instances, a person in their shoes has a lot to protect and they therefore buy a very robust bullet-proof vest (i.e. a valuable insurance policy), but most people don't. Most drivers in Texas don't have millions of dollars worth of assets to protect, so they buy relatively insignificant insurance policies.

But irrespective of whether or not they have a million dollars in insurance, when someone causes a fatal accident, they very likely have caused a million dollars in losses. What we mean by that is that if the typical wrongful death case goes to trial in Texas, and a jury hears about how a reckless driver took the life of a family's breadwinner or a mother of three kids, etc., the jury is going to be inclined to punish that defendant and make him pay dearly. So, for all intents and purposes, a fatal car accident case is a significant legal matter wherein a jury will assign a significant value to your suffering.

In light of that, you really have to ask yourself, "is settling such a significant claim for the value of an insurance policy really fair and just?" Most people wouldn't think so. Sure, if the defendant has $500k in insurance and his insurance carrier is willing to give it to you (which they would never do without a fight), then maybe you could call that "fair enough" and conclude that settling is a good idea. But in the more common scenario, you've got a significant claim and you must decide whether or not you're willing to settle for very little, which is commonly the case when a driver on has, say, $30k in liability insurance. Deciding to waive your right to sue for half your case's value may be a good compromise, but waiving your rights for three cents on the dollar does not seem reasonable in most instances.

Where we're going with all of this is that there are some very concrete financial reasons that you may not want to jump into a quick settlement (since you lose the right to sue the defendant in the future and you're likely to only get an insignificant settlement). But that's not the whole story either, and you stand to lose something far more valuable than money: leverage. You see, when you have a pending case against a defendant driver, you can make them do certain things. You can take their deposition, force them into court, and just generally exercise a degree of control over them. But that all goes away the moment you settle.

But you may be thinking, "Why would I need leverage?" Because the defendant may know far more than you realize. We have seen dozens of cases where someone was killed in an accident, the family assumed it was just a routine car accident case, yet they let us investigate for them, and we soon learned that there was much more to the accident than simple negligence.

More specifically, what we often uncover is that there is someone other than the defendant driver who is also responsible. That there's someone else who needs to be held accountable. And as fate often has it, the defendant is the only one who knows who that other party is.

For instance, if the defendant was drinking at a bar, then they know whether or not the bar tender over-served them and is also to blame. If the defendant was on the clock at the time of the accident, they know whether or not their employer did anything that would make the employer liable. If the accident was really caused by a tire blowout or a steering failure, the defendant driver is the only one who is likely to know that that is the case. So by settling and letting them out of the case, you forever lose the right to pick their brains and find out what exactly they do know.

Accepting a settlement is not a good decision unless you have considered every part of the situation. There are many variables to examine. The things you should consider before accepting a settlement are: if there are possible other defendants in the case or if there is more compensation that someone owes to you and your family. When you accept a settlement you're effectively allowing the defendant driver to be released from any further responsibility.

Think about that for a second...If someone has claimed the life of your family member, that person has in effect caused you to suffer incredible loss. Even though there's no dollar value that you can place on that suffering, if your case went to trial, that is exactly what a jury would attempt to do. They would hear the facts and circumstances of the case, and they would force the defendant to pay you an immense sum of money. So, unless the defendant has an immense sum of insurance, by settling with him, you are effectively allowing him to escape full "sentencing" and accountability for his offense.

In the beginning of this article, we mentioned that family members have a decision on their hands to settle or not to settle. Perhaps there's a better way to restate the question: should a family take the relatively small payout of an insurance claim or should they forget about the insurance company and sue the wrongdoer above and beyond the value of his insurance policy?

If the insurance company offers you a settlement, then they will want to pay you this money immediately. That's because they know the case value is probably much more than that. If it is better for them to offer you a settlement, the insurance company will do just that. This is because they want you to settle on this lesser amount--when the value of the damages you've suffered is usually worth much more. Both our legal system and personal injury law are based on values of fairness or "equity." If the court systems insist on a fairness awarded to you for having lost a loved one, and the payment they would make the defendant pay is significantly higher than what the insurance company's settlement amount is...doesn't that mean that the legal system believes that the amount paid to you in a settlement is not the fair amount you are owed? The courts are in place for justice and equity, their opinions are based on fairness.

So before you decide to release the wrongdoer from further liability, make sure you've gotten everything you need from him. Timing is extremely important with fatal car accidents and settlements. There is no need to rush into a decision on a settlement just because it seems like the right amount to keep you and your family financially secure. Consider all your opportunities, use the time to your advantage, and review your options. Timing is everything.You can open a claim with the defendant driver's insurance company, not yet accepting any settlement, and the open claim requires him to speak with you regarding the accident. If your loved one has died, the defendant driver--the one who caused this situation--is sometimes the only other person with details.

Those are very serious concerns and realities in car accident fatalities that involve a loved one, but they are not the only things to take into consideration before deciding to settle in a fatal car accident case. In the next section, we'll cover a few examples where settling too soon is bad.

Here Are Some Scenarios Where Settling Early Was The Wrong Choice:

In an all-too-common situation, your loved one was hit by a reckless drunk driver who was served too many drinks at a bar. The bar could be responsible for allowing the driver to drink too much. Places that serve liquor to customers have a responsibility to stop serving when they see someone has had enough to drink. The bar cannot just serve and serve and serve a patron, expecting there not to be any consequences. Sometimes, these bars are liable for the drunk driver's accident.

It can be so easy to just take the insurance's settlement and not consider any other liability. As we know though, some blame may actually belong to the bar that kept providing alcohol to someone completely intoxicated. If you accept a payment settlement from the defendant driver's insurance immediately, you lose your option to find out if the bar gave the defendant driver too many drinks. Once you accept a settlement, the driver is not required to tell you anything more, including the name of the bar. The release document "releases" him from any accountability to you. However, if you do not immediately take the settlement check, but instead look over every detail, you will find out that necessary information. You can open a claim, speak with the defendant driver--as his insurance company will insist he comply and talk with you regarding the claim--and get the details that you need. The settlement alone cannot provide you with the damages that the bar may need to provide to you; the settlement actually keeps you from ever knowing that a bar may owe you because of your loss. By learning the name of the bar, the details of the situation, and all the various factors that led to the defendant driver getting in his car that night, you now know that there may be some responsibility from the bar.

In another scenario, the driver may not have been drunk but just irresponsible. The driver may have been on work time for a company, using that company's vehicle or running an errand for them. Employers are held accountable for their employees; they chose to hire that person. By you signing the release for an insurance payment, again, you allow the defendant driver to be released from speaking with you. Therefore, with this release, you may never find out if the driver was on work time or who he even worked for. If you did not take the settlement immediately however and had an expert look at the situation with you, you may find that the employer of the driver may be responsible too. Once you know who the driver's employer is, you can possibly get appropriate payment from them as they are partially liable for what happened. With an immediate settlement, the driver does not ever have to tell you about his employer.

Finally, what if you accepted the settlement too soon, and the driver actually had enough finances to help you in the future? With a settlement, you are letting the driver off the hook for any more payment he may owe you. Accepting means you're accepting the payment from the insurance only. However, if the driver made a decent income, that could help replace the income that you have now lost for your future. If your loved one was the sole breadwinner for your family, wouldn't it make sense to see if the defendant driver could make up for the future years of income that he took away from you and your family? This claim is worth looking into with a legal expert. The defendant driver's details can become so important in your case, including providing a future security that he had taken away from you in the fatality of your loved one. If you accept the settlement, you're releasing him from a fair responsibility to you and your lost loved one.

When accepting a liability settlement can be good for you:

How can you do this? How can you know the settlement is the right choice? You need an expert: a lawyer. These car accident fatalities unfortunately happen all the time, and lawyers have worked with other clients just like you. Legal experts know that settlements may sometimes be the easiest option, especially whenever the case is reviewed and there seems to be no other liable party involved besides the defendant driver. It is so important to have a law expert at your case and let you know if you have more options than just taking the settlement as soon as possible. Experience is something that you can benefit from. Unfortunately, you have experienced the loss of a loved one, but you can benefit from others' knowledge on the subject.

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