On May 7, 7:08 am, Larry <x...@y.com> wrote:
> wouldn't you expect the cop to review his notes
> BEFORE testifying, so it was fresh in his mind, instead of reviewing
> them on the stand for the first time since the incident?
Not usually. For one thing, even reviewing the notes is not likely to help the cop actually remember other details of the particular ticket incident. So, for all practical purposes, the notes are the only substantive evidence available, and to get them into evidence, they need a "proponent" (a live witness, the cop) who can testify from present recollection that they are his notes, that he took them contemporaneously with when the incident occurred, and that they are fair and accurate.
For another thing, for reasons of efficiency cops are generally scheduled to come to court on the same day for several unrelated tickets which that particular cop issued to different people. If he tried to review and memorize them in advance, he would still run the risk of mixing up the facts of case A with the facts of case B to be heard on the same day.
Thirdly, defendants often plead "guilty" or "guilty with an explanation" (in effect waiving trial but accepting a plea bargain at the arraignment stage) so that the cop does not have to testify, but the cop didnt know in advance that the defendant would do that, and so the cop has to appear in court anyway. (If the cop doesn't appear, each defendant's case where the state is relying on that cop's testimony will probably be dismissed rather than rescheduled.)
Or a defendant may not show up, or even if the cop is there, a judge may dismiss the case for some other reason. So the cop is not going to waste his time reviewing particular notes until that particular defendant's case is called AND that defendant pleads "not guilty" and demands a trial, at which point the judge asks the state to present its evidence (i.e., for the cop to testify). So there's no time frame in there where the cop _can_ review his notes between knowing that he will have to testify, and actually testifying.
Finally, the situation you describe relies on a different evidence rule, which allows virtually anything to be used to "refresh" a witness' present recollection. Frex, you could wave a rose in front of his face and the aroma could remind him of some fact he needs to remember. The witness with memory thus refreshed _is_ then competent to testify from his (refreshed) present recollection of the events he is testifying about. Even an advance review of the notes would not do that for a typical cop in a typical traffic ticket case since he would still know nothing more than what was contained in his notes.
So, the cop situation is not "present recollection refreshed" but rather "past recollection recorded." Apples and oranges.
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Monday, August 13, 2012
Lesser included crime=double jeopardy for retrial?
On May 6, 8:35 am, Mike <prabb...@shamrocksgf.com> wrote:
> Stuart A. Bronstein wrote:
> > Think of it this way - if some elements are necessary components of two
> > different crimes, and the defendant is found not guilty of those
> > elements, he can't be guilty of the other crime either.
>
> Actually that analysis doesn't work. Let's say that law A makes driving
> fast illegal and law B makes driving drunk illegal. Now driving is a
> necessary component of both laws.
That's not what Stu was talking about. The lesser and greater offense both must share _every_ element of the lesser offense. Your example would not preclude prosecution for drunk driving if the defendant driver were ticketed for speeding, not because DUI adds different elements that were not present in the lesser offense, but because a DUI conviction does NOT require proof of speeding. which IS a required element of the lesser offense.
> Now in the hypothetical case that started all this, the elements that
> made a violation of law A (attempted murder) were ALL included in law B
> (actual murder) but that's not quite what you said above.
Yes it is. The elements required to prove attempted murder form a completely included subset of the elements needed to prove murder. So, if one of those essential elements has not been proven after a trial to which jeopardy attaches, murder cannot be proven either.
> And also I
> wasn't questioning if he could be found guilty of murder if the SAME
> evidence wouldn't support a charge of attempted murder (which I agree he
> couldn't be) but would it be considered double-jeopardy if he was
> CHARGED with the murder if he was found not guilty of the attempted
> murder
Yes, because the acquittal of attempted murder, regardless of the reason, acts as a bar against later prosecution for a "greater inclusive" crime, to use Stu's phrase, even if new evidence is uncovered. That's the whole point of the double jeopardy rule. Otherwise, a person acquitted once could be re-tried for even the SAME crime, any time the state alleged it had uncovered "new evidence" that was not available at the first prosecution.
> (slightly different question since there could be new evidence
> that showed him actually guilty of murder. But Mike Jacobs did point out
> that it would be double-jeopardy to charge a greater-inclusive crime,
> the same as a lesser-included crime and I have no problem with it now
> that it's been answered. I.e. it wasn't so much that I didn't understand
> the double-jeopardy issue but that I wasn't sure how the courts had
> ruled this particular application of it.)
By George, Now He's Got It. But I think that was Stu's insight on this thread, not mine, to give credit where due.
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
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> Stuart A. Bronstein wrote:
> > Think of it this way - if some elements are necessary components of two
> > different crimes, and the defendant is found not guilty of those
> > elements, he can't be guilty of the other crime either.
>
> Actually that analysis doesn't work. Let's say that law A makes driving
> fast illegal and law B makes driving drunk illegal. Now driving is a
> necessary component of both laws.
That's not what Stu was talking about. The lesser and greater offense both must share _every_ element of the lesser offense. Your example would not preclude prosecution for drunk driving if the defendant driver were ticketed for speeding, not because DUI adds different elements that were not present in the lesser offense, but because a DUI conviction does NOT require proof of speeding. which IS a required element of the lesser offense.
> Now in the hypothetical case that started all this, the elements that
> made a violation of law A (attempted murder) were ALL included in law B
> (actual murder) but that's not quite what you said above.
Yes it is. The elements required to prove attempted murder form a completely included subset of the elements needed to prove murder. So, if one of those essential elements has not been proven after a trial to which jeopardy attaches, murder cannot be proven either.
> And also I
> wasn't questioning if he could be found guilty of murder if the SAME
> evidence wouldn't support a charge of attempted murder (which I agree he
> couldn't be) but would it be considered double-jeopardy if he was
> CHARGED with the murder if he was found not guilty of the attempted
> murder
Yes, because the acquittal of attempted murder, regardless of the reason, acts as a bar against later prosecution for a "greater inclusive" crime, to use Stu's phrase, even if new evidence is uncovered. That's the whole point of the double jeopardy rule. Otherwise, a person acquitted once could be re-tried for even the SAME crime, any time the state alleged it had uncovered "new evidence" that was not available at the first prosecution.
> (slightly different question since there could be new evidence
> that showed him actually guilty of murder. But Mike Jacobs did point out
> that it would be double-jeopardy to charge a greater-inclusive crime,
> the same as a lesser-included crime and I have no problem with it now
> that it's been answered. I.e. it wasn't so much that I didn't understand
> the double-jeopardy issue but that I wasn't sure how the courts had
> ruled this particular application of it.)
By George, Now He's Got It. But I think that was Stu's insight on this thread, not mine, to give credit where due.
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Recorded recollection
On May 4, 7:23 am, Hermes <manning...@gmail.com> wrote:
> This might seem a bit sketchy, but if a witness doesn't have any
> "independant recollection" of events and their entire testimony is
> taken from notes, can the witness be deemed incompetent?
No.
I take it you're thinking of, frex, a cop who wrote a ticket 6 months or so before he has to testify about it at trial, and can't remember that one ticket as distinguished from the other umpteen tickets he wrote in the meantime except by reading frrom his notes. Or, a doctor testifying about his treatment of a patient that occurred months, or years, before he is put on the witness stand, when he has treated zillions of other patients in the meantime and may also have treated the same patient for other, unrelated conditions too. How else are these professionals going to keep the facts straight and accurate, not mixing up one case with another, other than by writing it down? As you can probably guess, this is (a) done all the time, and (b) perfectly legal.
The key concept is "past recollection recorded" if you want to look it up in your state's evidence code. As long as the witness can testify truthfully and competently, in the present day, that (a) he took careful, contemporaneous notes of the situation in question at a time when he had adequate opportunity to observe it (and all the other things that go into competency of a witness' testimony) and that (b) the paper he is referring to as he testifies today is a true and accurate copy (or the original) of those notes, the substance of his testimony comes into evidence just as if he was testifying from a present recollection.
Of course, the fact that he was testifying from notes rather than memory also obviously becomes evidence the jury can consider, and that goes to the weight of his testimony and his credibility. If it is the kind of thing the jury would reasonably expect a person to remember, a once-in-a-lifetime and maybe scary kind of thing for an Average Joe witness, his testimony may smell a little fishy if he has to rely on notes instead of having the event etched into his memory forever. But one ticket or one patient visit out of hundreds is not something a professional like a cop or a doctor would be expected to remember independently of his notes,
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
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(tel) 410-740-5685 (fax) 410-740-4300
> This might seem a bit sketchy, but if a witness doesn't have any
> "independant recollection" of events and their entire testimony is
> taken from notes, can the witness be deemed incompetent?
No.
I take it you're thinking of, frex, a cop who wrote a ticket 6 months or so before he has to testify about it at trial, and can't remember that one ticket as distinguished from the other umpteen tickets he wrote in the meantime except by reading frrom his notes. Or, a doctor testifying about his treatment of a patient that occurred months, or years, before he is put on the witness stand, when he has treated zillions of other patients in the meantime and may also have treated the same patient for other, unrelated conditions too. How else are these professionals going to keep the facts straight and accurate, not mixing up one case with another, other than by writing it down? As you can probably guess, this is (a) done all the time, and (b) perfectly legal.
The key concept is "past recollection recorded" if you want to look it up in your state's evidence code. As long as the witness can testify truthfully and competently, in the present day, that (a) he took careful, contemporaneous notes of the situation in question at a time when he had adequate opportunity to observe it (and all the other things that go into competency of a witness' testimony) and that (b) the paper he is referring to as he testifies today is a true and accurate copy (or the original) of those notes, the substance of his testimony comes into evidence just as if he was testifying from a present recollection.
Of course, the fact that he was testifying from notes rather than memory also obviously becomes evidence the jury can consider, and that goes to the weight of his testimony and his credibility. If it is the kind of thing the jury would reasonably expect a person to remember, a once-in-a-lifetime and maybe scary kind of thing for an Average Joe witness, his testimony may smell a little fishy if he has to rely on notes instead of having the event etched into his memory forever. But one ticket or one patient visit out of hundreds is not something a professional like a cop or a doctor would be expected to remember independently of his notes,
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I am not your lawyer, and you are not my client in any specific legal
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Mike Jacobs
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Insurance subrogation claim, part 5
On May 3, 6:22 am, s...@panix.com (Seth) wrote:
> Proportional recovery would seem to provide the best incentives and
> most fairness.
We agree on that, Seth. I'm all for fair and proportional settlements rather than all-or-nothing, winner-take-all litigation, and in favor of fairness in general in just about any other context I can think of.
But unless our purpose is just to raise public consciousness and/or lobby the legislature for a change in the law, we do a disservice to people like OP if we give him false hopes that he may be able to get more money back to repay his deductible than he already did. In this thread I was just trying to explain some possible reasons, that apply in some states, why he may not have been able to get any more than the $550 his insurer already got back from the other guy for him.
Philosophizing about ideal justice here on MLM is great, but in analyzing a particular case we have to deal with the law as it is, not as we want it to be. And the law in most states is, the insurance company gets first dibs on a subrogation recovery from the responsible party before any of that cash recovery goes to reimburse the deductible. Keep in mind that insurance is risk management, but not a no-risk guarantee; so folks who know that in advance and don't want to put a lot of their own money at risk can pay the premium for a lower, or even zero, deductible. In that sense even the majority rule is fair to both sides in the long run. Regards,
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I am not your lawyer, and you are not my client in any specific legal
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Mike Jacobs
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10440 Little Patuxent Pkwy #300
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(tel) 410-740-5685 (fax) 410-740-4300
> Proportional recovery would seem to provide the best incentives and
> most fairness.
We agree on that, Seth. I'm all for fair and proportional settlements rather than all-or-nothing, winner-take-all litigation, and in favor of fairness in general in just about any other context I can think of.
But unless our purpose is just to raise public consciousness and/or lobby the legislature for a change in the law, we do a disservice to people like OP if we give him false hopes that he may be able to get more money back to repay his deductible than he already did. In this thread I was just trying to explain some possible reasons, that apply in some states, why he may not have been able to get any more than the $550 his insurer already got back from the other guy for him.
Philosophizing about ideal justice here on MLM is great, but in analyzing a particular case we have to deal with the law as it is, not as we want it to be. And the law in most states is, the insurance company gets first dibs on a subrogation recovery from the responsible party before any of that cash recovery goes to reimburse the deductible. Keep in mind that insurance is risk management, but not a no-risk guarantee; so folks who know that in advance and don't want to put a lot of their own money at risk can pay the premium for a lower, or even zero, deductible. In that sense even the majority rule is fair to both sides in the long run. Regards,
--
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I am not your lawyer, and you are not my client in any specific legal
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For confidential professional advice, consult your own lawyer in a
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Mike Jacobs
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10440 Little Patuxent Pkwy #300
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(tel) 410-740-5685 (fax) 410-740-4300
Women lawyers
On May 1, 6:42 am, LyricalReckoner <lyricalrecko...@yahoo.com> wrote:
> Thought yous guys might enjoy Set in Style, a blog about law firm
> publishing:
>
> http://misterthorne.org/set_in_style/
>
> A recent post discusses the origins of those grammatically incorrect
> creatures known as women lawyers:
>
> http://misterthorne.org/set_in_style/2007/02/26/women-v-females-part-i/
I read the article; fascinating, but it misses the point IMO. Sexism, or disparagement of women, has nothing to do with it except as an aftereffect of the samr root cause, i.e. that women are perceived as a minority in the profession. It is very common in linguistics of all languages and all situations to use an undifferentiated, generic term to refer to individual examples of a subset that makes up the majority of the larger generic category, and to use some sort of adjective or attrributive noun to modify the generic term when referring to a member of the minority subset of that larger category.
Thus we use "cars" to refer to passenger motor vehicles in general as well as to refer to gasoline-powered motor vehicles, which is the image most of us have in mind when someone just says the generic term; but we say "hybrid cars" or "diesel cars" or "electric cars" if we are talking about the minority of cars with those different powertrains. We don't say "gasoline cars" unless the speaker is specifically striving for parallelism in a context where wanting to differentiate them from other kinds of cars.
I believe they don't usually refer to "women doctors" in Russia because there, MOST doctors are women. Currently, a slight majority of enrollees in USA law schools are also women. Someday soon, it may be the "men lawyers" who need to be specifically differentiated when we are talking about that minority gender of lawyers, and we will assume we are talking about female professionals when we just say "lawyers", the way we do today when we just say "nurses".
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Thought yous guys might enjoy Set in Style, a blog about law firm
> publishing:
>
> http://misterthorne.org/set_in_style/
>
> A recent post discusses the origins of those grammatically incorrect
> creatures known as women lawyers:
>
> http://misterthorne.org/set_in_style/2007/02/26/women-v-females-part-i/
I read the article; fascinating, but it misses the point IMO. Sexism, or disparagement of women, has nothing to do with it except as an aftereffect of the samr root cause, i.e. that women are perceived as a minority in the profession. It is very common in linguistics of all languages and all situations to use an undifferentiated, generic term to refer to individual examples of a subset that makes up the majority of the larger generic category, and to use some sort of adjective or attrributive noun to modify the generic term when referring to a member of the minority subset of that larger category.
Thus we use "cars" to refer to passenger motor vehicles in general as well as to refer to gasoline-powered motor vehicles, which is the image most of us have in mind when someone just says the generic term; but we say "hybrid cars" or "diesel cars" or "electric cars" if we are talking about the minority of cars with those different powertrains. We don't say "gasoline cars" unless the speaker is specifically striving for parallelism in a context where wanting to differentiate them from other kinds of cars.
I believe they don't usually refer to "women doctors" in Russia because there, MOST doctors are women. Currently, a slight majority of enrollees in USA law schools are also women. Someday soon, it may be the "men lawyers" who need to be specifically differentiated when we are talking about that minority gender of lawyers, and we will assume we are talking about female professionals when we just say "lawyers", the way we do today when we just say "nurses".
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
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(tel) 410-740-5685 (fax) 410-740-4300
Can I sue ex-boyfrriend to repay a loan?
On May 1, 6:41 am, jmk0317 <jenna_ku...@yahoo.com> wrote:
> My boyfriend (of 5 years) and I broke up in February of 2005.
[OP says she had lent her ex $4000 at various times for various reasons]
> We never put these loans in writing, but he did agree to repay the
> $4,000 and offered to sell one of his ATV's to repay me.
You can sue him on that promise, but absent a written note, it will be a "he said -she said" situation if he denies receiving the money, denies that it was a loan, or denies making a promise to repay you. As always in cases where the evidence is evenly balanced, chances are good that the defendant (your ex) will win. This is because you, as the plaintiff, have the burden of persuasion and proof, and if the factfinder's (judge or jury's) mind is evenly balanced, you have not met that burden of putting forth a "preponderance of the evidence." But if his denials are simply not credible or if he does admit to the existence of the necessary elements of your claim when he is questioned under oath, you may win.
> I know that
> it was stupid not to put the loans in writing, but I think I was smart
> here...for the last few years of our relationship, he did not have a
> driver's license, so we titled his vehicle in my name to be able to
> register & insure it. Knowing he would get his license back shortly, i
> gave him the title when he moved out so he could register it on his
> own but never signed it.
Putting aside the question of why you would buy a Hummer jointly with a guy who had no driver's license, being smart would have meant your _keeping_ the title (to his other vehicle) _in_your_ possession_ until he _fully_ repaid you. As you recognize, it was just about the only thing you had as leverage over him to induce repayment of the loans, since you did not bother to put anything in writing or take back a security interest (lien) in any of the things you actually helped him pay for.so they could act as collateral for the loans.
> I was not going to sign it until I saw my
> money, but I finally signed it after he made 3 deposits into my new
> account totalling $600.
That was exceedingly trusting of you, toward someone whom you already had reason not to trust. And in doing so you gave up any further leverage you had over him as an incentive to his continuing payments.
> Of course, those were the last deposits I saw
> from him.
Not surprising.
> My question is this...Can I get him (legally make him) to repay these
> loans?
Yes, you can sue him, as noted above. Whether that suit would be successful is an open question and "it depends"(TM) on all the pertinent facts and law, as may only become apparent at trial, depending on what _he_ says.
> I do have several emails between us through these months.
> Nothing that states "I, slimey exboyfriend, do recognize and promise
> to repay said loan...", but they allude to an acknowledgement.
Well, what _exactly_ do they say? They may or may not be sufficient to constitute a "writing" acknowledging the debt that would tilt the scales of justice in your favor. How can we comment on them if you do not quote them?
However, since they are all you've got, if you do decide to sue, then by all means you will want to offer the emails into evidence for whatever their weight and value may be.
> I also
> have all of the cancelled checks & deposit slips, but I do not know if
> that will help, as both of our names were still on the account.
Um, how do YOU have the cancelled checks, if HE wrote them to YOU? They would have been returned to HIM by his bank. Or do you mean he wrote checks to you, from your JOINTLY OWNED account? That would be bizarre.
Or are you referring to cancelled checks from your (personal) home equity account from you TO HIM, constituting the loans, and the deposit slips for his repayments TO YOU coming from some other source? That would make more sense. It would also help greatly if you had written something on the equity checks, WHEN THEY WERE ISSUED, to the effect that they were a "loan" -- even that single word on the "memo" line on the lower left corner of most checks, would maybe tip the balance. But if you DIDN'T do that, way back when you made the loans, DON'T try to "fake it" now; that would be tampering with evidence, fraud, and all kinds of other nasty (and possibly criminal) stuff.
If you can show that he made payments to you from HIS OWN funds AFTER you broke up, it may bolster your testimony that these were intended as a beginning of repayment of your loan to him. But why on earth did you keep a JOINT account open after you broke up? Even if he wrote checks to that account from a different source, he could argue that he was just using it as a depository for his OWN money, unrelated to any claims of yours.
> Oh, here is another twist...while this was happenning, I sold my home
> and moved across the country. About ten months later, I found out that
> he had gotten married and also moved actross the country, but to a
> different state then me. If I can sue him, where do I do it???
Neither of those moves have anything to do with whether you can sue him or not, except as an inconvenience. You can only sue a defendant and require him to appear in court in a jurisdiction with which he has sufficient contacts so that compelling him to appear there would not be fundamentally unfair; that would violate the due process clause of the US Constitution. Thus, in a typical contract case you can sue either in the state where the contract was made (i.e. where you reached an agreement), the state where it was performed in whole or in part (i.e. where the payments were sent to or from), or where the defendant currently lives or regularly does business. You can't sue him where YOU now live unless HE has sufficient contacts there. So you may have to go back to your old haunts, or track him down to his new state, if you want to sue him. Or an attorney in one of those places could do so for you. If you don't want to travel, you can hire a local attorney where YOU live, who would then make the necessarly arrangements with a local co-counsel if he determines that he has to sue in one of those other states.
Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> My boyfriend (of 5 years) and I broke up in February of 2005.
[OP says she had lent her ex $4000 at various times for various reasons]
> We never put these loans in writing, but he did agree to repay the
> $4,000 and offered to sell one of his ATV's to repay me.
You can sue him on that promise, but absent a written note, it will be a "he said -she said" situation if he denies receiving the money, denies that it was a loan, or denies making a promise to repay you. As always in cases where the evidence is evenly balanced, chances are good that the defendant (your ex) will win. This is because you, as the plaintiff, have the burden of persuasion and proof, and if the factfinder's (judge or jury's) mind is evenly balanced, you have not met that burden of putting forth a "preponderance of the evidence." But if his denials are simply not credible or if he does admit to the existence of the necessary elements of your claim when he is questioned under oath, you may win.
> I know that
> it was stupid not to put the loans in writing, but I think I was smart
> here...for the last few years of our relationship, he did not have a
> driver's license, so we titled his vehicle in my name to be able to
> register & insure it. Knowing he would get his license back shortly, i
> gave him the title when he moved out so he could register it on his
> own but never signed it.
Putting aside the question of why you would buy a Hummer jointly with a guy who had no driver's license, being smart would have meant your _keeping_ the title (to his other vehicle) _in_your_ possession_ until he _fully_ repaid you. As you recognize, it was just about the only thing you had as leverage over him to induce repayment of the loans, since you did not bother to put anything in writing or take back a security interest (lien) in any of the things you actually helped him pay for.so they could act as collateral for the loans.
> I was not going to sign it until I saw my
> money, but I finally signed it after he made 3 deposits into my new
> account totalling $600.
That was exceedingly trusting of you, toward someone whom you already had reason not to trust. And in doing so you gave up any further leverage you had over him as an incentive to his continuing payments.
> Of course, those were the last deposits I saw
> from him.
Not surprising.
> My question is this...Can I get him (legally make him) to repay these
> loans?
Yes, you can sue him, as noted above. Whether that suit would be successful is an open question and "it depends"(TM) on all the pertinent facts and law, as may only become apparent at trial, depending on what _he_ says.
> I do have several emails between us through these months.
> Nothing that states "I, slimey exboyfriend, do recognize and promise
> to repay said loan...", but they allude to an acknowledgement.
Well, what _exactly_ do they say? They may or may not be sufficient to constitute a "writing" acknowledging the debt that would tilt the scales of justice in your favor. How can we comment on them if you do not quote them?
However, since they are all you've got, if you do decide to sue, then by all means you will want to offer the emails into evidence for whatever their weight and value may be.
> I also
> have all of the cancelled checks & deposit slips, but I do not know if
> that will help, as both of our names were still on the account.
Um, how do YOU have the cancelled checks, if HE wrote them to YOU? They would have been returned to HIM by his bank. Or do you mean he wrote checks to you, from your JOINTLY OWNED account? That would be bizarre.
Or are you referring to cancelled checks from your (personal) home equity account from you TO HIM, constituting the loans, and the deposit slips for his repayments TO YOU coming from some other source? That would make more sense. It would also help greatly if you had written something on the equity checks, WHEN THEY WERE ISSUED, to the effect that they were a "loan" -- even that single word on the "memo" line on the lower left corner of most checks, would maybe tip the balance. But if you DIDN'T do that, way back when you made the loans, DON'T try to "fake it" now; that would be tampering with evidence, fraud, and all kinds of other nasty (and possibly criminal) stuff.
If you can show that he made payments to you from HIS OWN funds AFTER you broke up, it may bolster your testimony that these were intended as a beginning of repayment of your loan to him. But why on earth did you keep a JOINT account open after you broke up? Even if he wrote checks to that account from a different source, he could argue that he was just using it as a depository for his OWN money, unrelated to any claims of yours.
> Oh, here is another twist...while this was happenning, I sold my home
> and moved across the country. About ten months later, I found out that
> he had gotten married and also moved actross the country, but to a
> different state then me. If I can sue him, where do I do it???
Neither of those moves have anything to do with whether you can sue him or not, except as an inconvenience. You can only sue a defendant and require him to appear in court in a jurisdiction with which he has sufficient contacts so that compelling him to appear there would not be fundamentally unfair; that would violate the due process clause of the US Constitution. Thus, in a typical contract case you can sue either in the state where the contract was made (i.e. where you reached an agreement), the state where it was performed in whole or in part (i.e. where the payments were sent to or from), or where the defendant currently lives or regularly does business. You can't sue him where YOU now live unless HE has sufficient contacts there. So you may have to go back to your old haunts, or track him down to his new state, if you want to sue him. Or an attorney in one of those places could do so for you. If you don't want to travel, you can hire a local attorney where YOU live, who would then make the necessarly arrangements with a local co-counsel if he determines that he has to sue in one of those other states.
Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Title search, title insurance - what do I need?
On May 1, 6:42 am, "Alan" <alanb_lano2s...@yahoo.com> wrote:
> A first-time-buyer friend, who is buying a $200K single family house in
> Atlanta, said the realtor who structued the deal is not using a title
> company, but rather "an attorney firm is doing that function." I was
> surprised but didn't say anything. Is this typical or should I suggest that
> he dig deeper into the situation?
Here in MD, many (not all) of the title companies are owned and run by lawyers or law firms (they just keep them separate for business or liability reasons), where persons who are NOT lawyers do the actual work, but under the supervision of the lawyers who run the company. There are also many lawyers who do sale closings (title settlements) along with other kinds of real estate work as a part of their legal practice. So, here it doesn't make much difference what the entity that does the work is called, so long as the actual person doing the work has the proper skills and applies the required due diligence to get the job done right. It does not necessarily require a lawyer to do it, so long as the paralegal doing the work has the proper training and supervision, but having an actual lawyer personally doing the work is not _worse_, if you get my drift.
All of which is separate from the concept of title INSURANCE, which if it is allowed in your state, is strongly recommended to help you sleep at night without worrying over whether some undisclosed error in your title could deprive you of ownership of the largest single investment most families make. Having a lawyer do the settlement is not a substitute for buying title insurance.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> A first-time-buyer friend, who is buying a $200K single family house in
> Atlanta, said the realtor who structued the deal is not using a title
> company, but rather "an attorney firm is doing that function." I was
> surprised but didn't say anything. Is this typical or should I suggest that
> he dig deeper into the situation?
Here in MD, many (not all) of the title companies are owned and run by lawyers or law firms (they just keep them separate for business or liability reasons), where persons who are NOT lawyers do the actual work, but under the supervision of the lawyers who run the company. There are also many lawyers who do sale closings (title settlements) along with other kinds of real estate work as a part of their legal practice. So, here it doesn't make much difference what the entity that does the work is called, so long as the actual person doing the work has the proper skills and applies the required due diligence to get the job done right. It does not necessarily require a lawyer to do it, so long as the paralegal doing the work has the proper training and supervision, but having an actual lawyer personally doing the work is not _worse_, if you get my drift.
All of which is separate from the concept of title INSURANCE, which if it is allowed in your state, is strongly recommended to help you sleep at night without worrying over whether some undisclosed error in your title could deprive you of ownership of the largest single investment most families make. Having a lawyer do the settlement is not a substitute for buying title insurance.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Insurance subrogation claim, part 4
On May 1, 6:42 am, s...@panix.com (Seth) wrote:
> In article <7fib33pjsqf2c0rekda98s0d8r9n5lo...@4ax.com>,
> Mike Jacobs <mjacobs...@gmail.com> wrote:
>
> >As an innocent indemnitor, the insurer thus has the primary right to
> >full reimbursement from any recovery they may get from that
> >responsible third party (the uninsured driver) before they owe a penny
> >of it back to their own insured driver.
Which, in context of the post this was excerpted from, applies in jurisdictions where the insurer is required to be "made whole" before the insured can recover his deductible. As noted in that original post, some other states require the claims to be split proportionately, in relation to their percentage of value. E.g if the insurer paid 70% of the claim and the deductible covered 30%, the insurer takes the first 70% of any recovery (after fees and costs) even if it is less than full, and the insured recovers the remaining 30% (after fees and costs).
> That would give the insurance company an incentive to settle for less
> than the full damages, since all the money it's giving up it would
> have to pay the policyholder anyway. That seems perverse.
Look at it the other way: what incentive would the insurer have to pursue the claim at all, if it had to pay back the deductible first, before the insurer received any reimbursement of the amount it already paid out? The insurer is doing all the work, and taking all the risk, and thus has the right to call the shots.
There's _always_ an incentive to settle for less than full value. Otherwise, why settle? Zero offers, and policy limits (or full dollar value) demands, make it very easy to decide to go to trial rather than settle, because then there is no room for compromise and someone else (a judge or jury) will have to make the decision because the involved parties will never see eye to eye. What gets people to the settlement table is, if they both are willing to give up a little of the best that could happen, and get a little more than the worst that could happen, so both sides go away partially satisfied. That is a win-win situation because, for both sides, "a bird in the hand is worth two in the bush".
There are some, but not many, circumstances where policy language and/or substantive law give the insured the right to approve or disapprove any third party settlement, and those usually arise in the context of third party liability insurance for commercial lines or professional liability such as medical malpractice, where policies often provide that the insurer cannot settle without the doctor's OK. But in most "personial lines" policies, such as ordinary auto and home coverage for average Joes, ol' Joe has no right at all to say yes or no to settlement of a subrogation claim, so long as the insurer has satisfied its obligation to him by paying the first party damages he claimed above his deductible. The only practical way for the insured to reduce the amount of his own deductible money he has at risk is to ask for a lower deductible, which of course carries a higher premium payment.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> In article <7fib33pjsqf2c0rekda98s0d8r9n5lo...@4ax.com>,
> Mike Jacobs <mjacobs...@gmail.com> wrote:
>
> >As an innocent indemnitor, the insurer thus has the primary right to
> >full reimbursement from any recovery they may get from that
> >responsible third party (the uninsured driver) before they owe a penny
> >of it back to their own insured driver.
Which, in context of the post this was excerpted from, applies in jurisdictions where the insurer is required to be "made whole" before the insured can recover his deductible. As noted in that original post, some other states require the claims to be split proportionately, in relation to their percentage of value. E.g if the insurer paid 70% of the claim and the deductible covered 30%, the insurer takes the first 70% of any recovery (after fees and costs) even if it is less than full, and the insured recovers the remaining 30% (after fees and costs).
> That would give the insurance company an incentive to settle for less
> than the full damages, since all the money it's giving up it would
> have to pay the policyholder anyway. That seems perverse.
Look at it the other way: what incentive would the insurer have to pursue the claim at all, if it had to pay back the deductible first, before the insurer received any reimbursement of the amount it already paid out? The insurer is doing all the work, and taking all the risk, and thus has the right to call the shots.
There's _always_ an incentive to settle for less than full value. Otherwise, why settle? Zero offers, and policy limits (or full dollar value) demands, make it very easy to decide to go to trial rather than settle, because then there is no room for compromise and someone else (a judge or jury) will have to make the decision because the involved parties will never see eye to eye. What gets people to the settlement table is, if they both are willing to give up a little of the best that could happen, and get a little more than the worst that could happen, so both sides go away partially satisfied. That is a win-win situation because, for both sides, "a bird in the hand is worth two in the bush".
There are some, but not many, circumstances where policy language and/or substantive law give the insured the right to approve or disapprove any third party settlement, and those usually arise in the context of third party liability insurance for commercial lines or professional liability such as medical malpractice, where policies often provide that the insurer cannot settle without the doctor's OK. But in most "personial lines" policies, such as ordinary auto and home coverage for average Joes, ol' Joe has no right at all to say yes or no to settlement of a subrogation claim, so long as the insurer has satisfied its obligation to him by paying the first party damages he claimed above his deductible. The only practical way for the insured to reduce the amount of his own deductible money he has at risk is to ask for a lower deductible, which of course carries a higher premium payment.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Insurance subrogation claim, part 3
On May 1, 6:41 am, b...@nyx.net (Barry Gold) wrote:
[in reply to my post asserting that in settling most first party insurance claims, the insurer has the exclusive primary right to sue the responsible third party in insured's name]
> I suppose that's possible if the policy language is written that way,
> but the policies I've seen do _not_ sign away the insured's right to
> sue the other driver. Instead, it gives the insurer the right of
> "subrogation:" if the insured sues and wins, the company is entitled
> to get back (some of) what it paid the insured.
Correct, if we were dealing with a typical health insurance policy; but that's not what a "right of subrogation" means in this context of first party auto claims.
There are at least two kinds of subrogation, equitable and contractual. Even if an insurance policy is silent on the issue, equitable subrogation applies, and allows anyone who has paid an obligation which another should have paid, to be indemnified by that other person. In other words, equity requires that the debt ultimately lie with the person who in good conscience ought to pay it, and so it allows the person who has paid that debt (although not ultimately responsible for it) to be indemnified by the one who _is_ ultimately responsible, i.e. the tortfeasor who caused the loss. Thus, when your own insurance company (who, after all, is not the one who caused your loss) pays that debt which, in good conscience, the guy who ran into you should have paid, the insurance company is equitably subrogated to your claim against the other driver and "steps into your shoes" to have the right to reimbursement for that loss from the tortious driver.
That _equitable_ subrogation does not extinguish the victim's primary right to sue in his own name, although it requires the person suing in his own name to reimburse the person who is subrogated to his claim if and when he does win something on that claim. This is, in fact, what generally happens with health insurance subrogation claims; Blue Cross or whoever is not going to go out and sue whomever they think caused the accident that led to your receiving medical treatment, but if _you_ do sue someone for injuring you and win, then Blue Cross is subrogated to your claim and is entitled to be reimbursed for the health insurance benefits they paid to you, before any of that third party recovery goes into your own pocket.
But a contractual right of subrogation goes further. As in OP's policy, they typically provide that "we are entitled to _all_ the rights of recovery of the [insured] person to whom payment was made against another [responsible third party]." That is, the insurance company is _exclusively_ entitled to pursue those rights, and thus the insured no longer has any right to do so (unless the insurer waives its rights in favor of the insured). THis is further shown by the requirement that the insured "must sign and deliver to [the insurer] any legal papers relating to that recovery, do whatever else is necessary to help [the insurer] exercise those rights and _do_nothing_ after loss to prejudice [the insurer's] rights."
That is, they _require_ the insured to "do nothing" with regard to the claim on which benefits were paid, except to follow instructions from the insurer in order to help the insurer. Pursuing a claim on his own, and/or settling that claim without having fully reimbursed the insurer first, would be exactly the kind of action in prejudice of the insurer's rights that the policy language forbids, because once the insured guy with the bent fender settles his (deductible) claim with the bad driver, and the bad driver obtains a release of liability (or an order of satisfaction of judgment) from the (insured) guy who sued him, the insurer can no longer pursue its subrogated claim for its portion of the loss -- because the defendant has been released from further liability.
Incidentally, that is of course the same reason the insured can no longer pursue a separate claim even _after_ the insurer has received a settlement or verdict -- not because it would prejudice hte insurer's rights any more, but because he doesn't have a claim against the bad driver anymore. Once the insurer is done with _its_ claim, the bad driver has been released from liability for the claim (if done before trial) or has already been tried once to a final judgment, so that any future suit arising from the same subject matter of the original claim is barred and subject to dismissal under the principle of _res_judicata_.
> So, no, in most cases the insurer cannot settle the claim without the
> injured party's consent, any more than your lawyer can settle your
> claim if you're not satisfied with the offer.
Yes they can. The difference is that the lawyer is merely acting as the agent for his client, who as principal must ultimately approve any settlement; but the auto insurer with a broad contractual right of subrogation is not a mere agent -- in effect it "owns" the third party claim formerly belonging to the insured, by virtue of having paid first party benefits under the collision or UM portions of its policy. So the insurer calls the shots on whether to sue, when and where to sue, how much to sue for, and how much to settle for, because the claim then belongs to the insurer, not to the insured. Although, as mentioned, "there's no harm in asking", and if the iunsurer decides not to pursue its subrogation rights, it can waive those rights in favor of the insured, which lets the insured go ahead and file his own suit to try to collect his deductible.
Usually, though, if the insurer decides not to sue, it's because they (with all their resources) have already decided that the bad guy is "judgment proof" -- they can't squeeze blood from a turnip, so to speak. So the pro se insured, pursuing his own small claims action for return of his deductible, is not likely to have much better luck actually collecting any money from the uninsured deadbeat, even if he wins a verdict that makes him feel better and that he can then use for wallpaper.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
[in reply to my post asserting that in settling most first party insurance claims, the insurer has the exclusive primary right to sue the responsible third party in insured's name]
> I suppose that's possible if the policy language is written that way,
> but the policies I've seen do _not_ sign away the insured's right to
> sue the other driver. Instead, it gives the insurer the right of
> "subrogation:" if the insured sues and wins, the company is entitled
> to get back (some of) what it paid the insured.
Correct, if we were dealing with a typical health insurance policy; but that's not what a "right of subrogation" means in this context of first party auto claims.
There are at least two kinds of subrogation, equitable and contractual. Even if an insurance policy is silent on the issue, equitable subrogation applies, and allows anyone who has paid an obligation which another should have paid, to be indemnified by that other person. In other words, equity requires that the debt ultimately lie with the person who in good conscience ought to pay it, and so it allows the person who has paid that debt (although not ultimately responsible for it) to be indemnified by the one who _is_ ultimately responsible, i.e. the tortfeasor who caused the loss. Thus, when your own insurance company (who, after all, is not the one who caused your loss) pays that debt which, in good conscience, the guy who ran into you should have paid, the insurance company is equitably subrogated to your claim against the other driver and "steps into your shoes" to have the right to reimbursement for that loss from the tortious driver.
That _equitable_ subrogation does not extinguish the victim's primary right to sue in his own name, although it requires the person suing in his own name to reimburse the person who is subrogated to his claim if and when he does win something on that claim. This is, in fact, what generally happens with health insurance subrogation claims; Blue Cross or whoever is not going to go out and sue whomever they think caused the accident that led to your receiving medical treatment, but if _you_ do sue someone for injuring you and win, then Blue Cross is subrogated to your claim and is entitled to be reimbursed for the health insurance benefits they paid to you, before any of that third party recovery goes into your own pocket.
But a contractual right of subrogation goes further. As in OP's policy, they typically provide that "we are entitled to _all_ the rights of recovery of the [insured] person to whom payment was made against another [responsible third party]." That is, the insurance company is _exclusively_ entitled to pursue those rights, and thus the insured no longer has any right to do so (unless the insurer waives its rights in favor of the insured). THis is further shown by the requirement that the insured "must sign and deliver to [the insurer] any legal papers relating to that recovery, do whatever else is necessary to help [the insurer] exercise those rights and _do_nothing_ after loss to prejudice [the insurer's] rights."
That is, they _require_ the insured to "do nothing" with regard to the claim on which benefits were paid, except to follow instructions from the insurer in order to help the insurer. Pursuing a claim on his own, and/or settling that claim without having fully reimbursed the insurer first, would be exactly the kind of action in prejudice of the insurer's rights that the policy language forbids, because once the insured guy with the bent fender settles his (deductible) claim with the bad driver, and the bad driver obtains a release of liability (or an order of satisfaction of judgment) from the (insured) guy who sued him, the insurer can no longer pursue its subrogated claim for its portion of the loss -- because the defendant has been released from further liability.
Incidentally, that is of course the same reason the insured can no longer pursue a separate claim even _after_ the insurer has received a settlement or verdict -- not because it would prejudice hte insurer's rights any more, but because he doesn't have a claim against the bad driver anymore. Once the insurer is done with _its_ claim, the bad driver has been released from liability for the claim (if done before trial) or has already been tried once to a final judgment, so that any future suit arising from the same subject matter of the original claim is barred and subject to dismissal under the principle of _res_judicata_.
> So, no, in most cases the insurer cannot settle the claim without the
> injured party's consent, any more than your lawyer can settle your
> claim if you're not satisfied with the offer.
Yes they can. The difference is that the lawyer is merely acting as the agent for his client, who as principal must ultimately approve any settlement; but the auto insurer with a broad contractual right of subrogation is not a mere agent -- in effect it "owns" the third party claim formerly belonging to the insured, by virtue of having paid first party benefits under the collision or UM portions of its policy. So the insurer calls the shots on whether to sue, when and where to sue, how much to sue for, and how much to settle for, because the claim then belongs to the insurer, not to the insured. Although, as mentioned, "there's no harm in asking", and if the iunsurer decides not to pursue its subrogation rights, it can waive those rights in favor of the insured, which lets the insured go ahead and file his own suit to try to collect his deductible.
Usually, though, if the insurer decides not to sue, it's because they (with all their resources) have already decided that the bad guy is "judgment proof" -- they can't squeeze blood from a turnip, so to speak. So the pro se insured, pursuing his own small claims action for return of his deductible, is not likely to have much better luck actually collecting any money from the uninsured deadbeat, even if he wins a verdict that makes him feel better and that he can then use for wallpaper.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Insurance subrogation claim, part 2
On Apr 29, 7:13 am, Stan Brown <the_stan_br...@fastmail.fm> wrote:
> Sat, 28 Apr 2007 07:23:09 -0400 from David Martel <marte005
> @earthlink.net>:
> > Why they failed to collect your deductible as part of the law suit is
> > strange.
They _didn't_ fail to collect his deductible; where do you think the $550 they paid to OP came from? It was less than full value, but that's what usually happens in any settlement.
> Is it merely strange, or is it actionable? Is the company free to
> settle for less than the deductible without the policyholder's
> consent?
They are, if the policy gives them that right. OP consented by contract, before the crash even happened, by his act of accepting the policy language and benefits and paying the premiums to keep it in force, even if he never "signed anything".
> Of if the company settles for more than the deductible,
> doesn't the policyholder have to be paid first?
In most states AFAIK it's the other way around. In a subrogation context, the insurer is an indemnitor in both senses of the word: they are paying their insured for a debt that rightfully should have been paid by another (the uninsured tortfeasor), and they are paying their insured for that damage to hold him harmless from the loss TO THE EXTENT it exceeds his deductible.
As an innocent indemnitor, the insurer thus has the primary right to full reimbursement from any recovery they may get from that responsible third party (the uninsured driver) before they owe a penny of it back to their own insured driver. Looking at it another way, when "bad stuff" happens to an insured who has a deductible provision in his first party coverage (e.g. the collision damage coverage), the insurer's duty to indemnify their insured for that loss kicks in only AFTER, and on top of, the insured having put up the full amount of his deductible toward that loss.
Requiring the insurer to reimburse the deductible FIRST, before the insurer is made whole, would essentially render the deductible provision meaningless in most cases. The bottom line is, anyone who has such a policy (as most of us do) should consider that his deductible is "gone with the wind" before he gets a penny from his insurance company, and should look upon any recovery of any portion of that deductible at all as a lucky chance, not an entitlement. If he doesn't like that arrangement, he should pay the higher premium it usually takes to get a lower deductible.
> I agree there's no claim against the other party or the other
> insurance company, but what about the OP's own insurance company? At
> least I'd think the OP would be entitled to an accounting, but maybe
> I'm wrong.
I agree he's entitled to an accounting from his insurance company of the full details of the settlement. If the insurer does not convince him they were dealing fairly with him, he can complain to the state insurance commissioner.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Sat, 28 Apr 2007 07:23:09 -0400 from David Martel <marte005
> @earthlink.net>:
> > Why they failed to collect your deductible as part of the law suit is
> > strange.
They _didn't_ fail to collect his deductible; where do you think the $550 they paid to OP came from? It was less than full value, but that's what usually happens in any settlement.
> Is it merely strange, or is it actionable? Is the company free to
> settle for less than the deductible without the policyholder's
> consent?
They are, if the policy gives them that right. OP consented by contract, before the crash even happened, by his act of accepting the policy language and benefits and paying the premiums to keep it in force, even if he never "signed anything".
> Of if the company settles for more than the deductible,
> doesn't the policyholder have to be paid first?
In most states AFAIK it's the other way around. In a subrogation context, the insurer is an indemnitor in both senses of the word: they are paying their insured for a debt that rightfully should have been paid by another (the uninsured tortfeasor), and they are paying their insured for that damage to hold him harmless from the loss TO THE EXTENT it exceeds his deductible.
As an innocent indemnitor, the insurer thus has the primary right to full reimbursement from any recovery they may get from that responsible third party (the uninsured driver) before they owe a penny of it back to their own insured driver. Looking at it another way, when "bad stuff" happens to an insured who has a deductible provision in his first party coverage (e.g. the collision damage coverage), the insurer's duty to indemnify their insured for that loss kicks in only AFTER, and on top of, the insured having put up the full amount of his deductible toward that loss.
Requiring the insurer to reimburse the deductible FIRST, before the insurer is made whole, would essentially render the deductible provision meaningless in most cases. The bottom line is, anyone who has such a policy (as most of us do) should consider that his deductible is "gone with the wind" before he gets a penny from his insurance company, and should look upon any recovery of any portion of that deductible at all as a lucky chance, not an entitlement. If he doesn't like that arrangement, he should pay the higher premium it usually takes to get a lower deductible.
> I agree there's no claim against the other party or the other
> insurance company, but what about the OP's own insurance company? At
> least I'd think the OP would be entitled to an accounting, but maybe
> I'm wrong.
I agree he's entitled to an accounting from his insurance company of the full details of the settlement. If the insurer does not convince him they were dealing fairly with him, he can complain to the state insurance commissioner.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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