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Thread: Adjuster ignoring us

  1. #16
    Willlyjo Guest
    Quote Originally Posted by latigo View Post
    Denying the hypothetical defendant/claimant the right to seek a judgment against the OP in another tribunal for his property damage because he was found at fault in the first lawsuit WOULD NOT BE APPLYING THE PRINCIPAL OF RES JUDICATA?!

    And you have the audacity to say that my understanding of the principal is limited?

    I have a rule I'm going invoke. I don't debate an unarmed opponent! So toodle-oo!
    You are vague and confusing at best, Latigo! We all agree (or should agree) that Res Judicata is the re-litigation of a claim that has already been decided by another court. In this case, the OP has claims against the "hit and run" driver/driver's insurance. One claim involves an injury and the other claim involves the OP's property damage.

    The OP already told us he filed suit in small claims and won a judgment which the Insurance Company paid for (property damage done to his vehicle). The remaining claim as a result of the hit and run accident has yet to be decided. These are 2 separate claims out of one incident! Now as often happens, someone may have 2 separate claims being litigated and they may be enjoined by the court so the claims can be more conveniently litigated, but in this case, the property damage claim has already been decided! Has nothing to do with Res Judicata--at all!

    As far as the Defendant (the hit and run driver who was at fault), if he wants to attempt to sue the OP/OP's Insurance for his damaged vehicle, he has the right to do so, but it would be a waste of time because everything points to him as being the person at fault, so he surely isn't going to be compensated for his damage when he was the one who caused the accident in the first place.

    There is NO RES JUDICATA--because there were no claims re-litigated--period! sheesh--can't you see that?
  2. #17
    Willlyjo Guest
    Quote Originally Posted by Willlyjo View Post
    You are contruing Res Judicata way too liberally! If property damage is compensated via small claims judgment, then it can't be re-litigated, period via Res Judicata! If the defendant (the one at fault) should file suit seeking compensation for property damages, it would be denied because the defendant is at fault, not because of Res Judicata! You're right about one thng, your knowledge of Res Judicata is limited.
    In all fairness to you, Latigo, I mistated in the above post concerning the Defendant's right to seek compensation for damages to his vehicle in the accident he caused as a hit-and-run driver. I meant to say in the above post that the Defendant can (has the right to) sue for damages to his vehicle, but he surely would not prevail in such suit because he was at fault in the accident. Again, as I stated also, there is no semblance of Res Judicata in the event the Defendant would seek such compensation for damages as a result of something he caused.
  3. #18
    You Are Guilty is offline Senior Member
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    At the risk of stirring the pot, this really screams "accord and satisfaction" to me. There is no way the carrier sent anybody a check without getting a signed Release in hand first.

    However, although he skipped a step in his analysis, latigo is absolutely correct in the application of res judicata. See, e.g., http://scholar.google.com/scholar_ca...96227952762756
    Quote Originally Posted by Tranquility
    Once you get to crazy land, it is only a guess on how to get out.
  4. #19
    Stevef is offline Senior Member
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    Quote Originally Posted by You Are Guilty View Post
    At the risk of stirring the pot, this really screams "accord and satisfaction" to me. There is no way the carrier sent anybody a check without getting a signed Release in hand first.
    Can a carrier put conditions on a payment made to satisfy a judgment?
  5. #20
    ecmst12 is offline Senior Member
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    They wouldn't send a release for a payment made to satisfy a judgement, and even if they had, it would be for property damage claims only.
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  6. #21
    justalayman is offline Senior Member
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    Quote Originally Posted by Stevef View Post
    Can a carrier put conditions on a payment made to satisfy a judgment?
    Not enforceable conditions but the parties can agree to such conditions which would then become a contract and generally enforceable.

    If the judgment creditor does not agree to the conditions, they simply say no, you owe per this judgment, and that is it.
  7. #22
    Willlyjo Guest
    Quote Originally Posted by You Are Guilty View Post
    At the risk of stirring the pot, this really screams "accord and satisfaction" to me. There is no way the carrier sent anybody a check without getting a signed Release in hand first.

    However, although he skipped a step in his analysis, latigo is absolutely correct in the application of res judicata. See, e.g., http://scholar.google.com/scholar_ca...96227952762756
    If you and Latigo are saying that the Defendant in Latigo's hypothetical can plead an application of Res Judicata to deny Plaintiffs claim for compensation due to injuries because a small claims court compensated him for property damages, I agree! ANYONE can apply ANY case law or statute in ANY lawsuit he desires to apply such statute or case law. The question is: Will he be successful?

    In the case cited by YAG, the appellate judges concur "A valid and final personal judgment rendered in favor of the Defendant (in this case, the OP) bars another action by the Plaintiff (in this case, the Defendant pursuant to Latigo's hypothetical) on the same claim."

    What you and Latigo don't seem to understand is that the OP has 2 claims arising out of one incident. Each claim is totally a different animal! Sure you could attempt to cite Res Judicata in this case, but you certainly wouldn't be successful and it is obviously so, based on the language of the decision of the Appellant Judges.

    Recently, I was personally involved in an accident due to another's neglect. I got a lawyer who was supose to handle my pain and suffering. I told him that I would negotiate concerning a 5000.00 cap in medical bills with the Insurance. I became disenchanted with the lawyer and fired him. He sent me an outrageous bill for his work on my case (which amounted to a couple phone calls and letters). The insurance (based on my communications with them) sent me a check for 5000.00. The check also had this lawyer's name on it, so I was forced to allow him to take his outrageous fee in order for me to get the balance.

    I took the lawyer to small claims court based on the fact, he can't recover any fees until the case is completed. I still hadn't recieved settlement on the injuries at that point. I prevailed in small claims and the lawyer returned the fees minus an agreed amount for his services (which was hundreds of dollars less than he claimed).

    According to Latigo's hypothetical in which YAG agrees, I would have been barred from my pain and suffering claim as a result of the litigation I invoked concerning payout of the Insurance cap on my medical bills. Yet, I got another much better lawyer who continued on with my claim and succeeded in getting me compensation for pain and suffering as well as the medical bills in excess of the Insurance cap already paid.

    My personal experience points out that Res Judicata wouldn't have been effective in my case which is quite similar to the OP's case in this thread, so I stand pat in my opinion that the Defendant according to Latigo's hypothetical could or would prevail in a claim against the OP citing Res Judicata.
  8. #23
    ecmst12 is offline Senior Member
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    My feeling is that if OP's small claims court win would actually preclude him from filing another suit for injuries, his lawyer would not have taken his case in the first place.
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  9. #24
    justalayman is offline Senior Member
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    Without reading the OP's other thread(s), we have this:

    The driver never showed up I won the case and his insurance paid for the damages 3500. Now, by them paying, their are admitting that thier are at fault. My lawyer and I pursuing for bodily injuries but thier adjuster never respond back, completely ignores us...
    Why would a PI claim not be able to be litigated separately from a prop damages claim? (of course unless the order stated it was for all damages or the plaintiff signed a release)




    Jack, didn't you have pre-existing injuries from an accident the year before? A herniated disc, a bulging disc and a shoulder injury? Have you even settled the prior case?

    What are the new injuries from this accident?
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  10. #25
    You Are Guilty is offline Senior Member
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    Quote Originally Posted by Stevef View Post
    Can a carrier put conditions on a payment made to satisfy a judgment?
    Admittedly, a little reading between the lines here, but yes. The case is not a bad faith claim, so the carrier is not a named party. Every policy I know of requires the good faith cooperation of the insured in their defense. Failing to appear for a hearing and being defaulted is generally considered not to be "cooperation". Thus, the carrier is off the hook for indemnity. If defendant wants to get paid under these circumstances (try to collect default from deadbeat P or get certified check from carrier), I can certainly see the carrier conditioning payment on a Release. Of course, this could also just be the world's newest adjuster who paid a default judgment out of the goodness of their heart.

    And to keep the discussion moving, by a show of hands, in P's second/current suit, can he (successfully) move for summary judgment based on a collateral estoppel argument from the prior default judgment?
    Quote Originally Posted by Tranquility
    Once you get to crazy land, it is only a guess on how to get out.
  11. #26
    tranquility is offline Senior Member
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    Without research, just on memory, I'm uncertain why willyjo disagrees with latigo or YAG. When we're talking about the same facts or occurrence with the same parties, it tends to scream res judicata. This division of claims as advocated by some (bodily injury/property damage) does not have any basis in law I know of. Why use those categories? Why not left side of the body vs. right side of the body injuries? Or, sue on a finger and see the results. Then, sue on the knee and see the results. Courts prefer to deal with things once--even though some causes can be bifurcated for parties or other reasons by the judge.

    That does not completely solve things for New York small claims which seem to have an odd wording in section 1808A:
    judgment obtained under this article shall not be deemed an adjudication
    of any fact at issue or found therein in any other action or court;
    except that a subsequent judgment obtained in another action or court
    involving the same facts, issues and parties shall be reduced by the
    amount of a judgment awarded under this article.
    I'm not sure how that is implemented. It would certainly require the OP re-prove up his facts on a future action. He does not get to rely on preclusion for the facts and not for the claims.

    In most states, there can be a third party bad faith action against another's insurance carrier. There is a duty to give the injured some answer on if liability is found or not. In other words, there are deadlines for informing an injured party what the insurance company intends to do or not do. If the insurance company has truly not communicated, a complaint to the governmental insurance oversight board (whatever it is called in NY) will get the agency to respond to them within a certain amount of time or suffer sanctions.

    Info edit:
    If we want more questions, we might go to the fact the judgment was a default one. Does that give us a preclusion if it was not on the facts?
    Last edited by tranquility; 06-25-2012 at 10:29 AM.
  12. #27
    justalayman is offline Senior Member
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    Quote Originally Posted by You Are Guilty View Post
    And to keep the discussion moving, by a show of hands, in P's second/current suit, can he (successfully) move for summary judgment based on a collateral estoppel argument from the prior default judgment?


    I would say no.

    no finding of fault in the other case. Judgement rendered merely due to no defense presented (essentially a nolo contendere)
  13. #28
    ecmst12 is offline Senior Member
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    OP has a lawyer. I would not advise filing an insurance department complaint, or doing anything else for that matter, without the blessing of his lawyer.
  14. #29
    You Are Guilty is offline Senior Member
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    There are clearly a universe of missing facts here, for which we will likely never get any clarity. Of course the best advice is to "listen to your lawyer".
    Quote Originally Posted by Tranquility
    Once you get to crazy land, it is only a guess on how to get out.
  15. #30
    Willlyjo Guest
    Quote Originally Posted by You Are Guilty View Post
    Admittedly, a little reading between the lines here, but yes. The case is not a bad faith claim, so the carrier is not a named party. Every policy I know of requires the good faith cooperation of the insured in their defense. Failing to appear for a hearing and being defaulted is generally considered not to be "cooperation". Thus, the carrier is off the hook for indemnity. If defendant wants to get paid under these circumstances (try to collect default from deadbeat P or get certified check from carrier), I can certainly see the carrier conditioning payment on a Release. Of course, this could also just be the world's newest adjuster who paid a default judgment out of the goodness of their heart.

    And to keep the discussion moving, by a show of hands, in P's second/current suit, can he (successfully) move for summary judgment based on a collateral estoppel argument from the prior default judgment?
    Even a collateral estoppel argument would not suffice because property damage and PI are 2 separate issues. Collateral Estoppel is meant to get rid of a portion of a cause of action, if applicable, therefore, even if applicable (which it isn't) Summary Judgment would be denied.

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