Answer: Sometimes. 1) Not infrequently we find an umbrella insurance policy, which is a minimum of $1M. Umbrella insurance policies usually have $1M, $2M, $5M, or $15M coverage. 2) We have forced insurance companies to pay more than the insurance policy limit to settle. 3) We have forced corporate and individual defendants to pay money out-of-pocket in addition to the insurance policy to settle cases. Unfortunately, without getting into the facts of a particular case, it’s not possible to answer the question.
Two Accident Cases We Settled for More Money Than the Insurance Policy
We have many cases we settled for amounts above the insurance policy. Following are two examples. In one example, we got the insurance company to pay a settlement above the insurance policy limit. In the second example, we got the defendant corporation to pay a settlement above their insurance policy limit.
Insurance Company Paid Settlement Above the Insurance Policy Limit
We got GEICO to pay $155,000 when the insurance policy was only $25,000. The extra money was paid from a GEICO insurance policy that did not cover the accident.
Our client was riding his motorcycle while very drunk when he was struck by a car in a hit-and-run accident. Our client had a $25,000 uninsured policy. Since the method we used to force GEICO to pay the extra money is our trade secret, we do not want to disclose how we got GEICO to pay $155,000.
Defendant Corporation Paid Settlement Above Their Insurance Policy Limit
We also got a defendant that is a well-known public corporation to pay $650,000 above their $1.2M insurance policy. The $650,000 above their insurance policy was paid by the defendant from corporate money. We were able to get the corporation to pay above the insurance policy with skillful negotiating.
This was another motorcycle accident where our client struck a car and liability was disputed by the insurance company.
We can’t identify the case or the defendant because the corporation demanded confidentiality, so no one would know the corporation agreed to pay above the insurance policy.
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Ways to Get More Money Than the Insurance Policy
Bad Faith Letter
Usually, to get more money than the insurance policy your lawyer needs to send a really good detailed letter called a Bad Faith Letter. This letter tells the insurance company, the defendant, and the defendant’s attorney (if any) of your intention to seek a jury verdict in excess of the insurance policy. Our Bad Faith letter is extremely detailed and five pages long.
Our Bad Faith Letter usually results in getting the insurance company to offer their entire policy to settle or to make a settlement offer when one was not previously made.
Jury Verdict Above the Insurance Policy
When a jury verdict is obtained that is more than the insurance policy, the insurance company may file an appeal. If the jury verdict is upheld by the appellate court, the defendant can sue his/her insurance company and attorney for malpractice. It is likely that either the insurance company or the defense attorney’s malpractice insurance company will pay the amount above the insurance policy.
The insurance company can avoid additional liability by offering to pay the entire insurance policy. However, insurance companies often refuse to offer to pay the entire insurance policy. Sometimes, they will offer to pay the entire policy at the time of trial, but this is too late. If the offer is accepted, they will avoid being forced to pay more than the insurance policy.
This question usually concerns car accidents and motorcycle accidents which often have insurance policies with less coverage than needed for a serious injury. A company negligent for causing an accident usually has a very large insurance policy. Construction accidents, for instance, usually involve companies with enough insurance to pay a judgment of as much as $20 million or more.
We know of a lawyer who recently accepted payment of a $100,000 policy at the start of a trial, four years after the accident, for the estate of a motorcyclist killed in an accident even though the lawyer won summary judgment which entitled the estate to 9% interest.
Accepting the settlement offer let the insurance company off the hook for what would have probably been a much larger verdict and would have included 9% interest. While the offer probably should have been accepted if offered soon after the accident, we would not have accepted the settlement at the time of trial.
Sometimes, even at the time of trial, it may be beneficial to agree to cap liability. We obtained a verdict of $465,000 for a knee injury, but at the trial, we agreed to limit liability to the $300,000 policy, so that’s all we could get. But we had a good reason.
We agreed to limit liability in exchange for an agreement to argue the injuries by presenting the medical records to the jury instead of having doctors testify. The problem was that our client’s doctor lost his medical license just weeks before the trial when it was found that he lied on his license renewal application.
This would have allowed the defense attorney to ask, “Doctor, have you ever lied before?” The jury would also be instructed by the judge that if they found that any witness has lied, they would be allowed to discredit the testimony of that witness.
With the defense presenting three doctors to argue that there was no injury, it was obviously beneficial to avoid having our client’s doctor testify. It also saved our client $10,000 for the doctor’s testimony fee. Another benefit was that it prevented the defense from appealing the verdict and our client could get the money immediately.
Whenever the insurance company makes it possible, we will seek a judgment above the insurance policy.
An upcoming article will discuss pursuing a judgment against the defendant’s house or other assets.
See how we have made insurance companies pay for court costs when they offer the entire insurance policy after we file a lawsuit.
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Philip L. Franckel, Esq. is one of the HURT911® Dream Team™ Founding Partners at 1-800-HURT-911® New York; He has a 10 Avvo rating; Avvo Client’s Choice with all 5-star reviews; Avvo Top Contributor; and a former Member of the Board of Directors of the New York State Trial Lawyers Association.
Robert Plevy, Esq. is one of the HURT911® Dream Team™ Founding Partners at 1-800-HURT-911® New York. Rob began his legal career in 1993 as an Assistant Corporation Counsel defending The City of New York against personal injury lawsuits.