Basis for pain and suffering?

[Dragonbits]

The key is, they still have the lawyer handle the legal portion - like making sure that the correct things are filed within the statute of limitations. If there are ongoing medical issues that will not be resolved within that time, a lawyer will know how to negotiate that there be no settlement until the full extent of the medical costs and the other financial implications are known. THAT is what the lawyer is important for: knowing and navigating legally.

SMH.

I believe we can still take that route with the UIM insurance, which is $100,000- ~$2,000 in PIP insurance already paid by my insurance.

I am not interesting in personally suing the defendant, granted that is an option, but it doesn't seem like a good option.

 

[justalayman]

I believe we can still take that route with the UIM insurance, which is $100,000- ~$2,000 in PIP insurance already paid by my insurance.

I am not interesting in personally suing the defendant, granted that is an option, but it doesn't seem like a good option.

No, you cannot sue the defendant. You have already stated the statute of limitations has expired.

 

[Dragonbits]

You need to realize that you could not legally file a

suit on behalf of your wife. That is the unlicensed practice of law.​

. You also cannot negotiate on behalf of her either or representing her in the discussions with the insurance companies for the same reason.

As to understanding the legal system:

Apparently you still don’t understand the statute of limitations. It is basically quite simple: you are given a limited amount of time to file a suit regardless of whether the injuries are healed or not. If you fail to file suit within that time, you are barred from filing a suit.

As to not knowing exactly how pain and suffering is calculated

There is no exact calculation. More than anything, it it is a negotiation.

Here are the jury instructions for California regarding non economic damages

https://www.justia.com/trials-litigation/docs/caci/3900/3905a/

Not a lot to go on there.

Honestly, I was wondering / concerned about that, "could

not legally file a suit on behalf of your wife. That is the unlicensed practice of law".

I shouldn't have loosely used the work "behalf". I believe I avoided that problem by always using my wife's name as pro se attorney, I only filled out the online forms under her direction and in consultation with her. The court has my email address, but I also included hers. Any official mail from the court was address to my wife.

If it came to having to appear in court, she would have to be the one doing it. But if it came to that, we would have hired a lawyer.​

As far as negotiating with the insurance company, at this point I wouldn't call it a negotiation, I sent them all the information they needed to make their decision, they offered their policy maximum. It could be that my own insurance company, Allstate, facilitated this more than I know, as they were also involved and I give them credit, they did help. Or I could have just been lucky so far, IMO I should never had let it go this long (2 years).

 

[Dragonbits]

No, you cannot sue the defendant. You have already stated the statute of limitations has expired.

I need to get going, but you must have missed the point I made about filing 12 yours BEFORE the

statute of limitations had expired.

While we weren't interested in personally suing the defendant, filing the lawsuit was necessary given the situation, and might have actually happened had not the insurance company offered their settlement.​

 

[adjusterjack]

As I said, I don't rule out contacting an attorney for the rest of this process.

That would be advisable as an Underinsured Motorists claim is a unique animal.

Read the Underinsured Motorists coverage part of your policy VERY CAREFULLY as there are deadlines and notice requirements that you don't want to get tripped up on.

Google Illinois Underinsured Motorists claim and study all the resources.

Google Illinois Underinsured Motorists demand letter for an idea on how to create one for your wife to explain her claim. It has to come from her over her signature.

Pardon my bluntness but you were 12 hours away from making your wife's claim worth $0 because of your fumbling around. There's a lot more money at stake now. UIM is an adversarial coverage. Your insurance company is legally allowed to put up a fight so it's not there just for the asking. If your insurance company balks she will end up in arbitration where your insurance company will have a very good lawyer and you will not be allowed to say one word in her behalf because you aren't a lawyer. Own up to your shortcomings and get a lawyer for her. With a potential $100,000 available you shouldn't have trouble getting one.

 

[HighwayMan]

I need to get going, but you must have missed the point I made about filing 12 yours BEFORE the
statute of limitations had expired.

When you return PLEASE stop changing the font in your posts. There is not need to post text in different sizes. It's extremely annoying.

 

[justalayman]

Honestly, I was wondering / concerned about that, "could
not legally file a suit on behalf of your wife. That is the unlicensed practice of law".

I shouldn't have loosely used the work "behalf". I believe I avoided that problem by always using my wife's name as pro se attorney, I only filled out the online forms under her direction and in consultation with her. The court has my email address, but I also included hers. Any official mail from the court was address to my wife.

If it came to having to appear in court, she would have to be the one doing it. But if it came to that, we would have hired a lawyer.

As far as negotiating with the insurance company, at this point I wouldn't call it a negotiation, I sent them all the information they needed to make their decision, they offered their policy maximum. It could be that my own insurance company, Allstate, facilitated this more than I know, as they were also involved and I give them credit, they did help. Or I could have just been lucky so far, IMO I should never had let it go this long (2 years).

No, you didn’t avoid the law by always using her name as pro we attorney. Your actions themselves were a violation. While I understand and sympathize with a person assisting their spouse, you need to be cautious of what you do.

And I was talking about a negotiation with YOUR insurance company under the UIM portion of your policy.

No I didn’t miss the part about you had filed your wife’s suit 12 hours before the deadline. I was referring to this statement:

I am not interesting in personally suing the defendant, granted that is an option, but it doesn't seem like a good option.

That is not a statement of the past. It is speaking of the current and future. To further show you weren’t speaking of the past, you DID sue the other party.


If the other party was clearly at fault, the their insurance company would have spent money to defend the suit and have to pay their attorneys fees on top of it. It’s callled. Cutting your losses. They pay out the max amount, which your damages clearly exceeded, and they get to walk away. They are done with the issue forever.

 

[Zigner]

You've settled with the other party - you can't sue the other party any more.

 

[adjusterjack]

Your wife's claim is with your insurance company and different rules apply.

 

[Dragonbits]

No, you didn’t avoid the law by always using her name as pro we attorney. Your actions themselves were a violation. While I understand and sympathize with a person assisting their spouse, you need to be cautious of what you do.

And I was talking about a negotiation with YOUR insurance company under the UIM portion of your policy.

No I didn’t miss the part about you had filed your wife’s suit 12 hours before the deadline. I was referring to this statement:




That is not a statement of the past. It is speaking of the current and future. To further show you weren’t speaking of the past, you DID sue the other party.


If the other party was clearly at fault, the their insurance company would have spent money to defend the suit and have to pay their attorneys fees on top of it. It’s callled. Cutting your losses. They pay out the max amount, which your damages clearly exceeded, and they get to walk away. They are done with the issue forever.

IMO if you understood what I meant you are being overly picayune about verb tense. But if I created confusion about this, what I should have said was:
“WE am not interest(ED) in personally suing the defendant, granted that WAS an option, but it DIDN’T seem like a good option.”

At the time we filed the lawsuit, it was a valid option to personally sue the defendant, our chances of winning were very high. But the only reason for filing was to protect the statute and gain more time to settle, not to pursue the lawsuit and the defendant.

The insurance company maybe cutting their losses by settling, by agreeing to settle we are maximizing our recovery. An actual lawsuit wouldn’t IMO result in a better settlement, given the expense, time and likely hood of actually collecting from the defendant. (I did out of curiosity google their home, it’s a modest bungalow).

And if I am not mistaken, a lawsuit would mean any UIM insurance wouldn’t be able to be pursued until the conclusion of the lawsuit.

What did surprise me a little, the other insurance company couldn’t settle until my own Allstate insurance sent them a written approval letter, since they hold the UIM insurance.

 

[justalayman]

I simply read what you wrote.

And again, you did sue the guy. You accepted a settlement and dismissed the suit but you did sue him.



The other insurance could have settled at any time regardless what your insurance company did. What I suspect the contact was was a release releasing the other insurance company and their client from any future claims. That would prevent you from suing the guy again. That’s only a guess but it’s based in logic of the matter

 

[Dragonbits]

I simply read what you wrote.

And again, you did sue the guy. You accepted a settlement and dismissed the suit but you did sue him.



The other insurance could have settled at any time regardless what your insurance company did. What I suspect the contact was was a release releasing the other insurance company and their client from any future claims. That would prevent you from suing the guy again. That’s only a guess but it’s based in logic of the matter

I am not a lawyer, but I thought only a judge can dismiss a case?

 

[quincy]

I am not a lawyer, but I thought only a judge can dismiss a case?

The party who initiated the suit can withdraw/dismiss the action. Lawsuits are withdrawn when a settlement is reached. Most settlement agreements will include a clause that says it settles all claims arising from the action and all further actions are forever barred.

 

[Dragonbits]

The party who initiated the suit can withdraw/dismiss the action. Lawsuits are withdrawn when a settlement is reached. Most settlement agreements will include a clause that says it settles all claims arising from the action and all further actions are forever barred.

I was under the impression that the plaintiff or pro see or lawyer can only file a motion to dismiss and a judge has to decide to dismiss a case,

No doubt signing a RELEASE OF ALL CLAIMS document would seriously hurt any chances of winning a lawsuit, it would not cause the lawsuit to be dismissed until a judge ruled on it.

Isn't that the correct procedure?

 

[Dragonbits]

I simply read what you wrote.

And again, you did sue the guy. You accepted a settlement and dismissed the suit but you did sue him.



The other insurance could have settled at any time regardless what your insurance company did. What I suspect the contact was was a release releasing the other insurance company and their client from any future claims. That would prevent you from suing the guy again. That’s only a guess but it’s based in logic of the matter

BTW, this is all history and not relevant to our current situation. I shouldn't have mentioned the lawsuit as it isn't relevant to anything, not even the settlement with the defendant's insurance company. It was just on my mind as a unique, interesting and stressful experience, but it's at best just a distraction to the case and the forum.



The lawsuit was received at the court at 5:30 AM on May 29th, the clerk approved it at 9:00 AM, we hand delivered the summons to the sheriff's office around 1:30 PM, the insurance company called us at 2:15 PM to offer to settle the claim, they left a MSG on the answering machine. Soon after that Allstate also called and left a MSG. Then I got cell call while driving home from the sheriff's office at 3:45 from Allstate (my insurance). They offered to put us in a three way call with the other insurance company.



The other insurance company only found out about the lawsuit on about May 6th when their client was served. They had already made their settlement offer, we had accepted and they were waiting on a letter from Allstate giving them permission to settle.



I am sure that this isn't the typical sequence of events, but when everything is compressed into 5 days, that is the result.



I believe Allstate needed to approve because the amount that the other insurance company pays directly affects how much the UIM insurance has to pay. Allstate needs to be sure that the other insurance payout maxed out their policy limits. But next time I talk to the Allstate adjuster, I will ask him why, right now it’s just my guess.



Both insurance companies behaved in an expeditious way to handle this, it was I who was negligent in waiting till the very end of the 2 year time limit. Filing the lawsuit was the only way to correct my mistake, as it turned out we didn't need to have done that, but it was a necessary step to take. I feel foolish for procrastinating, but not at all bad about the expense of filing the lawsuit.



Just thought I would take the time to explain why the lawsuit wasn’t really a factor in any of this and was only done to protect the statue of limitations.