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Dealing With an Uninsured Or Under-Insured Defendant In A Personal Injury Claim

Interviewer: How does one get compensated, when the offender has no insurance?

Robert Cummings: There’s 2 ways. One is, as I mentioned previously, you go to your own insurance. Depending upon your coverage, for under-insured or uninsured motorists, you can make a claim on your insurance company to receive some compensation. If there isn’t insurance involved, you can still sue the defendant. Some people make a decision not to have insurance, and If they cause harm to somebody else, they’re liable. You could still due the defendant. If the defendant has any property; bank accounts, stuff to satisfy the judgment, there can be a way to still get compensated.

It is Necessary to Confirm from the Outset that the Defendant in a Personal Injury Claim is Not Judgment Proof

That’s generally how a lot of civil litigation occurs. Party A sues Party B, and if Party B is liable, then Party B writes a check. If Party B doesn’t have the check, then you can take steps to garnish wages, to force the sale of property to satisfy the judgment, and stuff of that nature. In order to go down that route, you have to make sure from the outset that the defendant isn’t what they call judgment proof, meaning that they do have something that you can go after to satisfy the judgment.

Potential Timeframe of Resolution for a Personal Injury Lawsuit

Interviewer: How long can a case potentially last?

Robert Cummings: It all depends. A case could come in and we get all the records, we contact the insurance company, and the insurance company says, “Yes, this is a clear case. We offer you X, or we offer you policy limits,” meaning that this is the amount that the defendant has in insurance per incident or per injury, and we’ll tender that at full amount. Under Utah law, if they do that, then your insurance doesn’t have subrogation rights or personal injury protection. If your injury goes above and beyond what the policy limits are to the defendant, you can go to your insurance company and say, “This is what happened. These are the limits we got from the other company. The client has under-insured motorist. We submit the claim to you,” and they’ll come back with a dollar amount. You could be all said and done in a matter of months.

The Utah Rules of Civil Procedure Require that all Cases in Utah State Court Go to Trial Within an Year

There’s some tricky issues with it, pre-existing injuries, questions as to liability, or if it’s just a cash profit case, meaning wrongful death, serious injuries, then you go to the insurance company, you could be miles apart on what you think the fair value of the case is. In those instances, it’s going to require a law suit. The Utah rules of civil procedure, if it’s in Utah state court, require that all cases go to trial roughly within a year, discovery being concluded within the year, and trial shortly thereafter. Parties can stipulate to extensions or what have you, but generally if you run into litigation and you go to trial, it could be years before it’s resolved. If it’s a big enough case, or if it has enough quirks in it, it could go up on appeal, meaning having another court review what the trial court decision was, and that can be even a longer period of time. It’s really all dependent upon the facts of the case, how litigation proceeds, and how the insurance company or the defendant negotiates with the plaintiff.