West Bend, WI asked in Bankruptcy, DUI / DWI, Personal Injury and Car Accidents for Wisconsin

Q: Do I still get the insurance money if my claim is more than the maximum amount

I was the passenger in a car accident, in which the car was totaled. I had a serious neck injury was out of work for 3 months, the driver had no injuries. My lawyer wants me to take the offer of insurance which is his max liability. If I sue and get more than his liability coverage, do I get rewarded with the insurance money and whatever exceeds that falls on the driver? Also could he file bankruptcy for this if he was drinking and got a dui?

6 Lawyer Answers
W. J. Winterstein Jr.
PREMIUM
W. J. Winterstein Jr.
Answered
  • Bankruptcy Lawyer
  • Boyertown, PA

A: The answer depends upon the viability, and provability, of your claim.

An insurance company, the business of which is money, always has the option of paying in the full amount of its policy and going home. Or, if it believes that it's more promising to defend against your claim, it may do that.

If the insurers pays you the full amount of its policy, then yes, the insured remains (unless you've agreed to accept the policy limits as the full recovery in exchange for a dismissal of your claim in return for receipt of the policy proceeds).

The bankruptcy exemptions, and limits, and what claims are dischargeable and not, are set forth in the Bankruptcy Code. Usually, will destruction and auto accident damages are not dischargeable, depending upon the facts supporting the claim. It's not possible, upon the facts provided, to estimate what the drunk driver may do with respect to your claim.

Address your questions to an experienced lawyer authorized to practice in your jurisdiction's courts for the best answers.

Timothy Denison and Tim Akpinar agree with this answer

J. David Krekeler
J. David Krekeler
Answered
  • Bankruptcy Lawyer
  • Madison, WI
  • Licensed in Wisconsin

A: Yes. The insurer should pay you the full policy limits and you will have a claim against the driver for the balance.

And yes, the driver could file bankruptcy, but your claim, at least that part of your claim which is for bodily injury, should be a debt which cannot be discharged.

The statute is 11USC523(a)(9)

Timothy Denison and Tim Akpinar agree with this answer

Martha Warriner Jarrett
Martha Warriner Jarrett pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
Answered
  • Bankruptcy Lawyer
  • Santa Barbara, CA

A: Personal injury awards against a drunk driver are not dischargeable by the driver in bankruptcy, provided that the driver was convicted (or there is other proof of intoxication).

Tim Akpinar , Timothy Denison and Frank Pasternak agree with this answer

Frank Pasternak
Frank Pasternak
Answered
  • Personal Injury Lawyer
  • Brookfield, WI
  • Licensed in Wisconsin

A: Given that you were a passenger, the likelihood is that you should be able to recover all your damages. Whether your case is a "policy limits" case will be determined by the nature of your neck injury and medical treatment and total amount of your lost wages plus your pain and suffering. If you have underinsured motorist coverage, with limits higher than the other driver, then you may also make an underinsured motorist claim. If the only insurance available is the other driver's and your lawyer wants you to take it, then the last thing I would want is information regarding the other driver's assets/recoverability because if the limits are accepted, then the other driver will no longer ever owe you anything. We frequently obtain an "Asset Affidavit" from defendant driver's who don't have enough coverage. You only get more money then the limits if the other driver agrees to pay or has the ability to pay a judgment.

Tim Akpinar and Timothy Denison agree with this answer

James L. Arrasmith
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James L. Arrasmith pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
Answered
  • Criminal Law Lawyer
  • Sacramento, CA

A: In cases where your claim exceeds the driver's insurance liability coverage, accepting the insurance offer means you'll receive the maximum amount covered under the driver's policy. If you choose to sue and are awarded an amount greater than the insurance coverage, the excess could indeed fall on the driver personally. This situation could lead to various outcomes, depending on the driver's ability to pay the awarded amount beyond their insurance coverage.

However, it's important to consider the complexities involved in pursuing compensation beyond the insurance policy limits. Collecting the additional amount directly from the driver can be challenging, especially if they lack the assets or means to pay the excess judgment. Your lawyer's advice to accept the insurance offer might be based on a realistic assessment of the likelihood of collecting additional funds from the driver.

Regarding the possibility of the driver filing for bankruptcy, it's a complex area. Bankruptcy can discharge some debts, but there are exceptions, especially concerning debts arising from DUI incidents. Legal advice tailored to the specifics of your case can provide clarity on these matters, including the implications of pursuing amounts beyond the driver's insurance coverage and the potential impact of bankruptcy proceedings.

Tim Akpinar agrees with this answer

Tim Akpinar
Tim Akpinar
Answered
  • Personal Injury Lawyer
  • Little Neck, NY

A: It could depend on the juror's decision if the matter is pressed toward trial, in lieu of settling and concluding claim with a release based on negotiated figure. This is a complex question that should be discussed in detail with your attorney. Good luck

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