QUESTION:
I have a 12 year old son who was killed in Nov 2012. His father and I were divorced with legal custody 50/50. He filed an unlawful death suit with the insurance company. He wanted to settle without my knowledge. They in turn contacted me and said that they cannot do anything without me. The insurance company has now settled with him separately because I denied having to pay for his personal attorney’s fees. No one contacted me regarding this as the same was only brought to my attention when I emailed the insurance company to see the status of the claim. The same lady who said that she cannot proceed without me legally is also the one who says they settled with my ex-spouse separately. The insurance company has refused copies of claim papers to me. Is there a case?
ANSWER:
The right of wrongful death claimants to recover insurance benefits under defendant’s liability policy turns in the first instance on the language of the policy. Where two-tiered coverage is provided—one limit for “bodily injury” sustained by any person regardless of the number of claims made, and another limit for “each occurrence”—
the insurer’s collective exposure is restricted to the “bodily injury/per person” limit—not the greater “per occurrence” limit. This result rests on the “one action rule” (¶ 3:301): Plaintiffs’ claims do not constitute separate “bodily injuries” under such a policy but, rather, separate elements of damages flowing from the single bodily injury to the decedent. [See United Services Auto. Ass’n v. Lilly (1990) 217 CA3d 1396, 266 CR 691; Westfield Ins. Co. v. Estate of DeSimone (1988) 201 CA3d 598, 247 CR 291; Vanguard Ins. Co. v. Schabatka (1975) 46 CA3d 887, 120 CR 614]. Keep in mind that the “value” of plaintiff’s claim ultimately depends on evidence to support it. Plaintiff’s naked assertions as to pain and suffering, medical expenses, loss of earnings and earning capacity, etc. will have little effect on an insurance claims representative or jury without corroborative proof. Thus, counsel evaluating damages should always determine the best evidence available to substantiate plaintiff’s assertions; and acquire that evidence while it is fresh. It is best to seek personal assistance from a lawyer in order to help you in your personal injury case.
To read more, click here.
