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.

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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.


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 for Your Personal Injuries; Do I Need the Judge’s Approval?

April 17, 2010

A client has asked:

I heard that the judge presiding over the World Trade cases involving injured volunteers and workers has refused to approve a proposed settlement.  I read that the settlement was recommended by both plaintiffs’ and defense counsel.

In my accident case if we reach a  settlement, mus it be approved by the judge?

The answer is no.  A judge does not have to approve an accident case settlement made by an adult.

The exception is where the client is either an infant, incompetent person, or the estate of a dead client.  In those situations, the court has to make sure that the settlement is in the best interests of the client.  See our prior posts discussing the settlement of a child’s case.   See parts I, II, III, and IV.  Another exception is a class action lawsuit.

In many instances the judge will handle negotiations in your case.  However, the judge does not have to approve the settlement.  If the case on trial, the court will want the client to agree to the settlement on the record in open court.  However, in no way is this an opportunity for the judge to approve or disapprove the settlement.

If you have been involved in an accident, please feel free to contact me for a free consultation at either 800-591-1434 or write to letters@seitelman.com.

Mark E. Seitelman, 4/17/10, www.seitelman.com.


Getting a Recovery for Your Injuries in a Mediation; We Settled an Automoible Accident Case for $227,000 at Mediation

March 25, 2010

We recently settled a Bronx automobile injury in a  3 hour mediation before a private mediator. 

Mediation is an effective method of settling cases.   We have been using it for years.  See our prior post on mediation here.

Mediation is a settlement negotiation session.  Although it can be done by a judge in court, generally, mediation is done by a  private mediator hired by the parties.  In California it is popularly known as “rent a judge.”

For over a decade, private mediation has grown because  judges lack the time to settle a case at its early stages.  In our experience, most judges will spend the time  only after a jury is selected.  In a mediation, the mediator will spend whatever time is necessary.  

For example,

  • In one of our larger cases the mediation lasted from 10 am to 5:30 pm.  This was an accident case arising out of a Brooklyn construction accident. 
  • In another mediation, there were two sessions.  At the first meeting, lasting 2 hours, the issues were reviewed and discussed.  The mediator made a settlement recommendation to defendants.  Defense counsel had to review the case further with their insurance carriers in order to get more money.  We scheduled a second session, about 1 month later, when defense counsel obtained more settlement authority.  At the second session the case was settled.  This case involved a slip and fall at Fordham University in Bronx, New York.

If a case does not settle at the mediation, neither side is penalized.  Generally, both sides are in a “settlement mode” when agreeing to mediation. 

The parties must agree to a mediator.  Generally, mediators are retired judges.  However, some mediators are distinguished lawyers who have had track records as mediators.   In all of the above examples we  used lawyer-mediators.  Mediators are hired through various private services, such as JAMS and National Arbitration and Mediation.  Often, the service will also provide a meeting rooms or a suite of rooms at its offices.  For example, in a mediation at JAMS, the service provided a conference room and a separate, private room for plaintiff and his attorneys.

If you have been involved in an accident involving serious injuries, please feel free to call us for a free consultation at 800-581-1434 or write to us at letters@seitelman.com.

Prior case results do not guarantee a similar outcome.

Mark E. Seitelman, 3/25/10,  www.seitelman.com.


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