Getting a Recovery for Your Attorney’s Fee in Accident Cases and Insurance Lawsuits

April 19, 2012

Clients ask  whether they can separately recover their legal fees on top of the recovery for their injury or damage?  Unfortunately, the answer is “no.”

This question makes sense in that if the defendant did not injure the client, the client would not be put to the expense of hiring an attorney to get a recovery.  After all, the client is not profiting from the lawsuit.  He is merely being made “whole” after a loss.   

Under the so-called “American rule”, which is recognized in New York, each party of the lawsuit is responsible for his own legal costs.  In comparison, under the “English rule”, the winner can recover his legal costs against the losing side.

A disadvantage of the American rule is that the injured party is not made “whole”.  He must pay a portion of his recovery for his legal fees.  On the other hand, an advantage is that a losing plaintiff will not burdened with defendant’s legal costs if defendant wins.

 An exception to the rule is where either statute or a contract provides for the award of legal fees.  But, as a general rule legal fees cannot be recovered in personal injury, property damage, and breach of insurance cases.

Mark E. Seitelman, 4/19/12, www.seitelman.com.


Mark E. Seitelman Is in Super Lawyers

October 1, 2010

    I am pleased to announce that I am in the 2010 edition of Super Lawyers and that I am featured in a profile in a special advertising supplement to The New York Times Magazine (Sunday, October 3rd). 

The same profile will appear in the free-standing Super Lawyers magazine which is being mailed to all the lawyers in Metro New York.  

The New York Times     Only 5% of New Y0rk attorneys are elected into Super Lawyers.  They are nominated by fellow lawyers, and attorneys enter Super Lawyers based on their credentials, experience, and reputation for excellence and integrity.

I have been named a Super Lawyer in the following fields:

  1. plaintiffs’ personal injury (general);
  2. medical malpractice; and
  3. insurance coverage.

I am honored to be selected again into the ranks of Super Lawyers.  This has been my 4th year.  I thank my clients and colleagues for allowing me to be of service to them.

Mark E. Seitelman, 10/1/10, www.seitelman.com.


See an Attorney Early; Do Not Let Time Deadlines Pass

August 16, 2010

Every once in a while a client comes to us when it is too late.  

I discussed the prudence of seeing an attorney early in a prior post.

Last week a client asked our help on the following case:

Mrs. Mary Moore sustained a substantial loss of  her personal property due to a flooded basement.  The flood was caused by construction next door.  The contractor struck a water main.

There appears to be no question that the contractor was negligent.  His insurance company paid other people damaged by the flood.

Mrs. Moore sustained about $1,000,000 in personal property damage, such as damaged artwork, antique furniture, collectibles, and a vast designer clothing collection which included many unworn garments with their tags.

First, Mrs. Moore sought recovery from her own homeowner’s insurer, Allstate.  About 2 years after the flood, Allstate paid its full limits of $350,000.  She then sought to collect $650,000 from the contractor’s insurance company, Old State Dominion Insurance Company.

Mrs. Moore engaged in much negotiation with Old State’s representative.  Documentation was exchanged, and there were inspections of the property.

According to Mrs. Moore Old State’s adjustor told Mrs. Moore a number of times that a “claim must be filed no later than July 8th”, which was 3 years from the flood.  Mrs. Moore took it to mean that she must send-in all of her claims documentation.  There was also a conversation where Old State’s adjustor’s asked whether Mrs. Moore hired an attorney.  Mrs. Moore answered “no”.  “Good” was the adjustor’s response because “we can settle faster without an attorney.”

Mrs. Moore sent extensive and very organized paperwork supporting her claim to Old State before the 3 year deadline.  On July 16th, a week after  the 3 year anniversary, Mrs. Moore and the adjustor had an all day meeting to review the claim submission.  After this session another meeting was planned for August 2nd in which numbers would be discussed.

However, that August 2nd meeting was cancelled.  Old State sent a denial letter to Mrs. Moore on July 28th.  The claim was denied since suit was not filed within the 3 year statute of limitations.

We could not help Mrs. Moore.  She failed to file suit before the statute of limitations expired.  If suit had been filed, negotiations could have continued and may have led to an eventual settlement.

The law has a strong policy in upholding statutes of limitations.  The law favors  an end to claims and lawsuits.  In order to claim that the statute of limitations would not apply, we would have to show fraud by the insurance company.  Negotiation before or after the deadline will not be deemed a waiver of the statute of limitations.  Furthermore, there was no fraud in the adjustor’s statement that it was good that an attorney was not hired.  This was not tantamount to lulling the client into not hiring an attorney.   Furthermore, there was no offer made which could cause the client to think that the case was settled.  In sum, we could not show any of the extraordinary circumstances which would allow the case to proceed.

The lesson for clients is to consult with an attorney as soon as possible after a loss or an injury.  An injured client should be aware that there are strict time limits in which to pursue a claim or lawsuit.  Defendant will take every advantage of the statute of limitations which is a “slam dunk” defense.  

Mark E. Seitelman, 8/16/10, www.seitelman.com.


Getting a Recovery for Your Injuries When Defendant Becomes Bankrupt

July 14, 2010

A defendant’s bankruptcy could end your personal injury case.  It all depends upon the facts.

As a general rule, a corporation’s bankruptcy is a bad thing if you have a bodily injury claim or lawsuit..  It can either delay or end the case.

Here is a recent bankruptcy problem:

Our client was injured in a Bally’s gym.  We settled the claim before filing suit.  The client initially refused the settlement, but he re-considered and accepted it two months later.

At the time that we mailed the release to Bally’s, it filed for bankruptcy.  The payment of the settlement was stayed along with all other matters affecting Bally’s.  The settlement would not be paid until the bankruptcy court determined the amount that would be paid.

Finally, after about 1.5 years later, the bankruptcy court ruled that our client will be paid only 1% of the settlement offer that he accepted! 

In this case, as in all bankruptcies, the court has the power to determine how much of a settlement will be actually paid.  This is because the court must dole-out a bankrupt corporation’s limited, remaining assets on a fair and equal basis to all creditors, including landlords and suppliers.  Generally, an injured client could expect to collect only pennies on the dollar.

Also, in this case the defendant was self-insured.  There was no insurance to pay the claim.  All settlement funds had to come out of Bally’s very shallow pocket.

Also, a bankruptcy will greatly delay the payment of a settlement.  In another case involving another national company, Continental Bakeries, we had two clients in two different cases.  We  settled almost 4 years ago.  We have yet to be paid.

Therefore, a defendant’s bankruptcy can have a terrible impact on your case.  The individual facts of your case will have to be reviewed with your attorney.

Mark E. Seitelman, 7/14/10, www.seitelman.com.


Hiring a Lawyer from the Internet; Questions to Ask

June 14, 2010

Before looking for an accident attorney on the internet, you should consider the following:

Can I get a referral of lawyer from a trusted relative or friend? 

We always recommend this route especially if the relative or friend has had a similar case and has been happy with the results.  In a sense, this attorney has been “pre-screened” or “pre-qualified” by your referrer.

If you cannot obtain a recommendation, then we suggest that you do some research and ask some questions before hiring an attorney found through the internet.  Although most of the best attorneys have a web presence, the best attorneys do not always turn-up on page 1 of Google.  Often, a law firm’s appearance on page 1 is solely the result of a concerted advertising and marketing effort, such as Google ad words (advertising) and Search Engine Optimization.  In other words, an attorney’s appearance on the first page of Google or Yahoo does not assure excellence.

Here are some questions to ask: 

  • Does the attorney have credentials which set him apart from other attorneys?  For example:
  • Does the lawyer belong to a group which rates lawyers?   I am listed in New York Super Lawyers which lists the best lawyers in our region.  The Super Lawyers organization lists lawyers across the country.  I am also rated as Preeminent which is the highest rating given by Martindale-Hubbell, the leading directory of law firms in the nation.  I am also a member of the Million Dollar Advocates Forum which is limited to attorneys who have obtained verdicts and settlements in excess of $1,000,000.

  • Is the attorney a leader in his speciality?  For example, I am a  member of the Board of Directors of the New York State Trial Lawyers Association, and I am an active lecturer and writer in its Continuing Legal Education Programs.
  • Has the attorney handled similar cases with some degree of success?  
  • Has the attorney and his associate tried cases?  Many cases must be pushed to the courthouse door before there is a reasonable settlement. 
  • Does the attorney have the resources to try my case?  It can take anywhere from $10,000 to $50,000 to try a case.  Does the attorney have the resources to finance my case?  Or will he settle short?
  • How will the attorney respond to my questions and concerns during the life of my case?  Does the attorney have adequate staff, such as associate attorneys and paralegals, who can answer questions as well as move along the case.
  • What is the lawyer’s operation like?  Check the attorney’s office.  Although it may not be luxurious, there should be a certain level of attractiveness, comfort, and order.  If the attorney is unwilling to replace a ripped chair, will he spend the necessary resources on your case?  If the office is a mess or seems disorganized, then your case will be handled in this manner.
  • Are the attorney and his staff courteous and respectful?  You may be “living” with the attorney and his staff for a long time.  If they are not courteous and respectful at the beginning, then they will only get worse as time goes on. 

If you have been injured in an accident, please feel free to call us at 800-581-1434 or write to letters@seitelman.com.

Mark E. Seitelman, 6/14/10, www.seitelman.com.


Getting a Recovery in Your Accident Case; Exceptions to the New Health Insurance Lien Law

April 26, 2010

New York enacted General Obligations Law section 5-335 which abolishes health insurance liens in personal injury settlements.  See our prior post.

See full size image   The new law provides that a health insurer will not have a lien on the client’s net recovery.  In the past, the client’s health insurance company sought to recoup its medical bills paid for injuries and treatments arising from the accident.

This post discusses exceptions to the law.

I.  Cases that go to verdict

If a case goes to verdict, the health insurance company will have a lien.  This is because the injured plaintiff can prove and recover the medical bills, and that recovery gets passed along to the insurance company.

II.  “Self-funded” health plans under ERISA

A “self-funded” plan provided by the client’s employer would still have a lien under the federal law of ERISA which controls employee benefits, such as pensions and medical insurance.  The ERISA statute creates a lien.  The new New York law cannot overrule this lien.

The rationale for this lien is that the plan’s recouping of medical bills will keep the costs down of the medical plan for both the employer and its employees.

A “self-funded” plan is a health plan which the employer funds.  There is no insurance company although the plan may be administered by an insurance company, such as Aetna or Cigna.  This insurance company is called a Third-Party Administrator.  In a “self-funded” plan, the employer pays the employees’ medical bills.  The employer is not buying a group insurance policy with an insurance company, such as Empire Blue Cross/Blue Shield.

Generally, only very large national employers with thousands of employees provide healthcare through a “self-funded” plan.  Large employers, such as JP Morgan Chase Bank and Walmart, have the numbers and economies of scale to “self-fund” their employees’ medical bills.  It is safe to say that only employers with at least 5,000 employees will have the ability to “self’-fund” its medical plan.  It is also safe to say that small employers who employ less than 1,000 employees will have a “self-funded” plan.

III.  Medicare

If the client’s medical bills were paid by Medicare, then Medicare would have a lien for such bills.  Again, federal law creates the lien, and the new New York statute cannot overrule it.

         A recent federal rule mandates that insurance companies, defendants, and their counsel advise Medicare of a settlement involving an injured client receiving Medicare.  Therefore, many insurance companies refuse to make a settlement payment unless the issue of the Medicare lien is resolved.

IV.  Medicaid

The new statute provides that liens created by statute will not be affected.  This includes medical bills paid by Medicaid.  The New York City Human Resources Administration can have a lien for its medical bills under the Social Services Law.

Conclusion

At the end of a client’s case we have to consider either a healthcare lien, a Medicare lien, Medicaid lien, or any other liens against the recovery (such as public assistance).  Often, these liens can be negotiated and reduced. 

In every case, we attempt as negotiation and lien reduction as possible.

If you have been injured in an accident, please feel free to contact me for a free consultation at 800-581-1434 or write to letters@seitelman.com.

Mark E. Seitelman, 4/26/10, www.seitelman.com.


Getting a Recovery for Your Injuries When an Auto Invades Your Home

April 21, 2010

Today’s  New York Daily News reports that an innocent homeowner in Hempstead, Long Island, was run over and killed by an out of control van which bolted onto her lawn.  The homeowner was tending to her lawn. 

The van which was occupied by a man and a 19-year-old woman crashed into a home at Cathedral Avenue Hempstead Tuesday after fatally striking a woman mowing her lawn.

   The scene of the Hempstead, New York, accident

We have handled cases like this, such as:

  1. Car smashes through a storefront.  Workers within this jewelry  store were injured, and we handled their personal injury case against the errant vehicle.  We also pursued the store’s owner’s property damage case for damage to his storefront and jewelry display cases.
  2. Car strikes side of  a house.  In this case, the car did not go through the wall.  The client was inside a room where the vehicle struck the outer wall.  The impact of the collision caused the client to fall and sustain injuries.   
  3. Truck collides with backyard fence and injures homeowner and guest.  The homeowner and his guest were innocently enjoying a summer day in the backyard.  They were struck by the truck.

Generally, the insurance company will concede liability, but damages will be contested.  In the second case, the insurance company admitted that its vehicle owner was negligent in allowing his car to run into the side of a building, but the insurer contested the issue of proximate causation between the collision and the client’s fall inside the home.

If you have been involved in an accident involving an out of control vehicle, please feel free to contact me for a free consultation at 800-581-1434 or write to letters@seitelman.com.

Mark E. Seitelman, 4/21/10, www.seitelman.com.


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