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Criminal Lawsuite and restitution - Vehicular Manslaughter

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Chevychase

Junior Member
1. I am California resident. Last year my dad was hit by a reckless driver while crossing road on crosswalk. My dad was in deep coma for 10 days. He passed away after 10 days.

2. The criminal law suite gave the reckless driver - 350 hours of community service *Unmonitored* and no jail time although he was at 100% fault. I did not file civil lawsuite.

3. Any ways his insurance company gave 59K as compensation.
We signed waiver with insurance company stating that they are not responsible for any further claims.

4. Hospital bill for my dad's treatment for 10 days is 300K+.

5. The criminal lawsuite is nearing end. Sentencing part is done. Restitution is still remaining.

6. Deputy DA advised me that even though I have signed release letter to Insurance company of defendant waiving all future claims law still says that defendant is responsible for all the expenses. And court could order restitution. He says law is Crystal Clear about this.

7. Deputy DA advised me to look into 2 options
Option 1. I can hold defendant responsible for all expenses.
Option 2. Since Insurance company did not show up in the court to defend the defendant it could become a case of bad faith. Defendant can assign me the case against his insurance company.

8. I need to decide on option 1 or Option 2.
The restitution hearing is on 26 th Jan. Please help me.
 


stephenk

Senior Member
"Since Insurance company did not show up in the court to defend the defendant it could become a case of bad faith. Defendant can assign me the case against his insurance company."

Insurance company did not defend their insured in what case?

Be wary of criminal prosecutors giving you civil law advice. They don't practice civil law and typically don't know it very well.
 

Lynx 36

Member
Quote: "6. Deputy DA advised me that even though I have signed release letter to Insurance company of defendant waiving all future claims law still says that defendant is responsible for all the expenses. And court could order restitution. He says law is Crystal Clear about this.

Wrong. Once you sign the release you cannot come back on the insured f/ anything, especially restitution. This is the reason you sign a release in the first place. It protects the insured, as well as the insurance company from possible future lawsuits.

Quote: "Option 1. I can hold defendant responsible for all expenses."

Wrong. See above paragraph.

Quote: "Option 2. Since Insurance company did not show up in the court to defend the defendant it could become a case of bad faith. Defendant can assign me the case against his insurance company."

Wrong. This isn't bad faith. The insurance company is required to defend them in civil cases, not criminal ones. This is why they weren't there, nor will they be there on Jan. 26th.

I feel bad f/ your loss but 59k is all your going to get from him or his insurance company. You signed the release and settled. Any fines or future costs will be money he pays to the court f/ his criminal offense. The civil case is over and done with. You shouldn't have signed the release if you didn't want the settlement to be final.

It sounds like the junior DA is completely clueless on these matters.
 
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BelizeBreeze

Senior Member
Which does not preclude you from filing a civil case against the driver.

Contact a Personal Injury attorney immediately.
 

rmet4nzkx

Senior Member
No one here can tell you all your options or that you have no options. Please consult a personal injury attorney. Take everything you have, inlcuding your bills, any agreements, defendents policy and let an attorney experienced with such things provide you with an anaylsis of your case, you may indeed still have grounds for a civil case. Lynx is an insurance adjuster and will always tell you you don't have a case. While you may be granted restitution, it may also be difficult to collect.
 

Lynx 36

Member
Quote: "Which does not preclude you from filing a civil case against the driver.
"

His insurance company would provide him an atty, and the atty would bring the notarized release he signed to court and the case would be tossed.

Is there some law in CA that allows a person to file a civil case even though a release has been signed? If so, what would be the purpose of signing such a release if it is not legally binding? CA, after all is a sue happy state so it wouldn't surprise me. Not arguing, just asking. His case wouldn't fly here. :D
 

BelizeBreeze

Senior Member
Lynx 36 said:
Quote: "Which does not preclude you from filing a civil case against the driver.
"

His insurance company would provide him an atty, and the atty would bring the notarized release he signed to court and the case would be tossed.

Is there some law in CA that allows a person to file a civil case even though a release has been signed? If so, what would be the purpose of signing such a release if it is not legally binding? CA, after all is a sue happy state so it wouldn't surprise me. Not arguing, just asking. His case wouldn't fly here. :D
The release ONLY pertains to lawsuits filed against the insurance company. Yes, if the driver called their insurance company after he files a civil suit they would trot out the release, but that simply means they will not represent the driver since their legal obligation is over.

That DOES NOT mean the driver's legal obligation is over.

and no, this is not specific to California. It would apply even to a backwoods state like New York.
 

rmet4nzkx

Senior Member
Lynx 36 said:
Quote: "Which does not preclude you from filing a civil case against the driver.
"

His insurance company would provide him an atty, and the atty would bring the notarized release he signed to court and the case would be tossed.

Is there some law in CA that allows a person to file a civil case even though a release has been signed? If so, what would be the purpose of signing such a release if it is not legally binding? CA, after all is a sue happy state so it wouldn't surprise me. Not arguing, just asking. His case wouldn't fly here. :D
Reasons under California law to recind a contract.
CALIFORNIA CODES CIVIL CODE
SECTION 1565-1590
1565. The consent of the parties to a contract must be:
1. Free;
2. Mutual; and,
3. Communicated by each to the other.
1566. A consent which is not free is nevertheless not absolutely
void, but may be rescinded by the parties, in the manner prescribed
by the Chapter on Rescission.

1567. An apparent consent is not real or free when obtained
through:
1. Duress;
2. Menace;
3. Fraud;
4. Undue influence; or,
5. Mistake.
..................
 

Lynx 36

Member
Quote: "The release ONLY pertains to lawsuits filed against the insurance company."

Every release I've seen names all the parties and not just the insurance company. So it would depend on who is on the release and what it says. If an insurance company had him sign it I would guarantee it had the insureds name on it to protect him from future litigation as well.
 

Lynx 36

Member
Quote: "Reasons under California law to recind a contract.
CALIFORNIA CODES CIVIL CODE
SECTION 1565-1590
1565. The consent of the parties to a contract must be:
1. Free;
2. Mutual; and,
3. Communicated by each to the other.
1566. A consent which is not free is nevertheless not absolutely
void, but may be rescinded by the parties, in the manner prescribed
by the Chapter on Rescission.

1567. An apparent consent is not real or free when obtained
through:
1. Duress;
2. Menace;
3. Fraud;
4. Undue influence; or,
5. Mistake.
.................."

What the hell does this have to do w/ anything? The poster said nothing about being manipulated into signing anything. Going off on another tangent again? Just stick to the facts of the post please, better yet stop giving advice on auto claims as you are completely clueless.

The bottom line is if the insurance company included the insureds name on the release (which they always do) there is NO CIVIL CASE here. If there were to be it, would set a huge precedent everywhere. People would be constantly filing lawsuits b/c they want more money. Where will it end? This is the whole purpose of the release.....to prevent that.
 

rmet4nzkx

Senior Member
Lynx 36 said:
Quote: "Reasons under California law to recind a contract.
CALIFORNIA CODES CIVIL CODE
SECTION 1565-1590
1565. The consent of the parties to a contract must be:
1. Free;
2. Mutual; and,
3. Communicated by each to the other.
1566. A consent which is not free is nevertheless not absolutely
void, but may be rescinded by the parties, in the manner prescribed
by the Chapter on Rescission.

1567. An apparent consent is not real or free when obtained
through:
1. Duress;
2. Menace;
3. Fraud;
4. Undue influence; or,
5. Mistake.
.................."

What the hell does this have to do w/ anything? The poster said nothing about being manipulated into signing anything. Going off on another tangent again? Just stick to the facts of the post please, better yet stop giving advice on auto claims as you are completely clueless.

The bottom line is if the insurance company included the insureds name on the release (which they always do) there is NO CIVIL CASE here. If there were to be it, would set a huge precedent everywhere. People would be constantly filing lawsuits b/c they want more money. Where will it end? This is the whole purpose of the release.....to prevent that.
You asked,:
Lynx 36 said:
Is there some law in CA that allows a person to file a civil case even though a release has been signed? If so, what would be the purpose of signing such a release if it is not legally binding? CA, after all is a sue happy state so it wouldn't surprise me. Not arguing, just asking. His case wouldn't fly here. :D
You did not qualify your question, you said "some law", I cited, "some law". If any of the elements of CCP 1565-67 is present, the release could be null and void. Don't even attempt to imply that insurance adjusters don't take advantage of the injured party's situation in order to force a settlement for far less than if litigated.
 

BelizeBreeze

Senior Member
Lynx 36 said:
What the hell does this have to do w/ anything? The poster said nothing about being manipulated into signing anything. Going off on another tangent again? Just stick to the facts of the post please, better yet stop giving advice on auto claims as you are completely clueless.

The bottom line is if the insurance company included the insureds name on the release (which they always do) there is NO CIVIL CASE here. If there were to be it, would set a huge precedent everywhere. People would be constantly filing lawsuits b/c they want more money. Where will it end? This is the whole purpose of the release.....to prevent that.
And I suggest you stick with writing insurance policies and stop trying to practice law.
 

Lynx 36

Member
Quote: "And I suggest you stick with writing insurance policies and stop trying to practice law."

I'm not an insurance agent, they write and sell policies, I'm a Risk Manager w/ two adjustors under me and I deal w/ matters like this everyday. You on the other hand should stick to practicing law.

Ever heard of a "Release Hold Harmless Indemnity Agreement" counselor? If this was signed, there is no civil case, period! What's so hard to understand about this?

This same situation happened to my company about 6 mo's ago. We got sued after the claimant had signed the hold harmless agreement. The case was tossed out in court immediately. Some stupid atty thought the same way you did. It was fun to witness though. Anytime I can eat some shark f/ breakfast it always makes my day! Maybe you should take his case.
 

BelizeBreeze

Senior Member
Lynx 36 said:
Quote: "And I suggest you stick with writing insurance policies and stop trying to practice law."

I'm not an insurance agent, they write and sell policies, I'm a Risk Manager w/ two adjustors under me and I deal w/ matters like this everyday. You on the other hand should stick to practicing law.

Ever heard of a "Release Hold Harmless Indemnity Agreement" counselor? If this was signed, there is no civil case, period! What's so hard to understand about this?

This same situation happened to my company about 6 mo's ago. We got sued after the claimant had signed the hold harmless agreement. The case was tossed out in court immediately. Some stupid atty thought the same way you did. It was fun to witness though. Anytime I can eat some shark f/ breakfast it always makes my day! Maybe you should take his case.
You really are dense aren't you. I said the following:

Which does not preclude you from filing a civil case against the driver.
Now, in that one little statement, which, by the way, you can call your in-house attorney and verify, where did I stipulate that there are civil remedies 'against the insurance company'?


Signing a waiver to release the insurance company does not release the driver from civil litigation for amounts over and above the coverage amount.

A contract cannot, under both UCC and common law, deny the rights of the signor available under law. Otherwise, the contract is void on it's face.
 
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