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A Checklist for Auto Accident Cases

One of the biggest issues with an auto accident case is that the adverse driver's insurance coverage (if they have coverage at all) may be inadequate.


At the Mezrano Law Firm our lawyers must be creative in looking for alternative sources of recovery for our clients. In our office, we run through a checklist to make sure that we leave no stone unturned in pursuit of the best recovery for our clients:


1. Fully investigate adverse driver’s coverage.


Outside of the work our own Investigators do. We have made it a practice to use an outside insurance investigation serivce to research the defendant's insurance coverage. In a recent case, the defense lawyer served interrogatory responses stating that there was $1 million in coverage, and it was only through using an outside service that we discovered that there was also a $5 million umbrella policy (the case ultimately settled for the full $6 million in coverage). That really underscored the danger in trusting what defense counsel is telling you about coverage. Even though the defendant would seem to have every incentive to disclose all of his coverage (and therefore avoid personal liability), it doesn’t always work that way, for whatever reason.



2. UM/UIM coverage.


If the defendant’s coverage may not be adequate to cover the plaintiff’s damages (or if the defendant has no coverage at all), then the plaintiff’s lawyer should always inquire whether their client has an auto policy with uninsured/under-insured (UM/UIM) coverage.


If the plaintiff’s UM/UIM coverage is inadequate, find out whether he has an umbrella policy. Although most umbrella policies do not cover UM/UIM, some do. Keep in mind that UM/UIM coverage will sometimes apply even if the plaintiff was a pedestrian or was a passenger in someone else’s car.


3. Employer liability.


If the adverse driver was in the course and scope of employment, then his or her employer’s coverage will apply (possibly in addition to the driver’s personal coverage). Sometimes there is a factual dispute as to whether the driver was truly in the course and scope. Form Interrogatory No. 2.11 addresses course and scope, but you should not simply accept the defendant’s position on this issue without further investigation and discovery.


4. Negligent entrustment.


If someone entrusts his vehicle to another person, knowing that the driver is unfit or incompetent to operate it  (no driver’s license, lots of prior accidents and/or citations, history of drug or alcohol abuse, etc.), and the driver then causes an accident, the vehicle owner can be held liable. Keep in mind that negligent entrustment is distinct from permissive use. If the vehicle owner is not negligent in entrusting the vehicle, he can be vicariously liable for the driver’s negligence.


The starting point in analyzing a possible negligent entrustment claim is running the driving history and criminal history of the adverse driver and investigating the circumstances under which the vehicle came to be entrusted to the driver. Run the driver through the DMV database and also the court records in the county(s) where the driver lives and works. Make sure to determine whether the driver was licensed at the time of the accident because entrusting a vehicle to an unlicensed driver is considered negligent entrustment per se.


A negligent entrustment claim may provide a valuable source of recovery if the driver has little or no coverage himself.


5. Vehicle defect.


Always keep your eyes open, when reviewing the police report, inspecting the vehicles, etc., for any defect in the vehicle(s) that either contributed to the crash or made the injuries worse. For example, if the air bags did not deploy and the injuries are serious, we will almost always want to look at whether there might be a design or manufacturing issue with the air bag system.


6. Dangerous roadway.


Be on the lookout for any condition of the roadway that might have contributed to the crash. In catastrophic injury cases, it is always a good idea to go out to the scene early on and to calendar the six-month deadline for governmental claims. Dangerous roadway conditions could include (among many other examples): lack of a median barrier or guardrail, inadequate sight distance, chronic flooding of the road, failure to warn of construction activity, a malfunctioning traffic signal, worn striping or inadequate lighting.


7. Liability of adverse driver’s doctor.


On rare occasions, when the driver suffers a sudden medical emergency, such as a seizure, the plaintiff’s attorney will want to take a look at whether the driver’s doctor was negligent in failing to report a preexisting medical condition of the driver to the DMV so that the DMV could potentially take away his license. Form Interrogatory No. 2.12 asks about medical conditions that may have contributed to the crash, but you should also request the driver’s pertinent medical records and cover this subject in the driver’s deposition as well. If time permits, before the expiration of the statute of limitations, you should conduct this discovery before bringing in the doctor as a defendant. That way, you have a head start before the doctor’s defense attorney enters the case and starts to try to muddy the waters.


8. Adverse driver’s personal assets.


We almost always do at least some basic research regarding the adverse driver’s non-insurance assets (real property owned). Although attempting to collect someone’s personal assets is fraught with difficulty, it’s good to have this information, for two reasons. First, you want to rule out that the driver is a billionaire. Second, it allows you to have a meaningful conversation with your client about why any attempt to go after the driver’s non-insurance assets is probably not a good idea.



Following this checklist helps to ensure that our clients obtain the best recovery possible.

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© 2016 The Mezrano Law Firm, P.C., All rights reserved.

These recoveries and testimonials are not an indication of future results. Every case is different, and regardless of what friends, family, or other individuals may say about what a case is worth, each case must be evaluated on its own facts and circumstances as they apply to the law. The valuation of a case depends on the facts, the injuries, the jurisdiction, the venue, the witnesses, the parties, and the testimony, among other factors. Furthermore, no representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers.