What happens to an auto accident settlement if plaintiff dies before final deposition? 2 Answers as of June 29, 2016

My dad was in an auto accident a few years back. He was the passenger of the vehicle that was hit. The driver completed his deposition and was awarded a settlement. However, my dad’s injuries were more significant and needed more medical attention. Fault was determined to be the other driver that hit the car my dad was in. However, my dad moved to another state before the case was finalized. He came back to do a final deposition and had already been told what the settlement amount would be. My dad was hospitalized and died a few months later. He tried to get his lawyer to come to the hospital to record the deposition, which the lawyer said he could do, but the lawyer never came. My parents are technically divorced but my mom was his established caregiver. When my mom called the lawyer about the case, he told he she was not entitled to the settlement because of the divorce. However, the lawyer had known my dad since they were in high school and knew he had daughters. The lawyer never reached out and told my mom the case was over without the deposition even though the other parties involved had completed their depositions and were paid out on settlements and the insurance had already admitted fault of their driver. Could the attorney have collected the settlement without the final deposition from my dad? Is there a statute of limitations that the next of kin has to claim that settlement or finish it? What happens to the money if the settlement is not claimed? Is there any type of penalty for not contacting the next of kin? Thank you so much!!

Ask a Local Attorney. 100% Anonymous. Free Answers.

Free Case Evaluation by a Local Lawyer: Click here
Law Offices of George H. Shers | George H. Shers
This is a rather complicated matter and you will need to personally contact an attorney to be sure how to proceed. I also think you may be misinformed as to some of the facts of the case. If the settlement amount had been agreed to, there would have been no need and the defense would not have taken the deposition of your father. The claim for pain and suffering does not survive the death of the injured party because he he is the only one who suffered those damages and it is very difficult to calculate the sum so it would be an impermissible guess to come up with a figure. However, his estate would still be able to collect for any medical bills, loss of earnings, or other out of pocket expenses. If a suit was filed, than the estate should be substituted in as the plaintiff in place of your father. ?His ex-wife is not entitled to any compensation as they were legally divorced; however, she might be able to bill the estate for her care giving [if she had anticipated being paid] and that part related to the consequences of the accident might be a sum the estate could recover [and then settle with her for a discounted amount since there will be a charge for attorney fees and there has to be some incentive for the heirs of the estate to seek the reimbursement]. ?If your father's death was related to the accident, that would be an additional damage. The insurance company of the party at fault is only liable for the face amount of the policy; there is a maximum amount stated for injury to two or more people and that amount should be divided between the two based upon the amount of damages each suffered the insurance company may have breached its duty of good faith to its insured if they over paid in the other settlement. If you father or the driver of the car he was in had under insured motorist insurance protection, his estate might be able to claim a part of the excess, but you have to determine if either insurance provides coverage in this case. A lawsuit must have been filed within 2 years of the accident; if it was not, the estate might have a legal malpractice suit against your father's attorney, who you say knew there were heirs of his estate, if he had no Will. If amending the suit to have the estate named as plaintiff is barred by statute, then there might also be a legal malpractice case. The attorney should have contacted the daughters but since they were not his client they might not be able to sue for malpractice on their own behave and might have to do so on behalf of the estate, which would require the estate to be probated so that the court can name an administrator to sue for the estate [and indirectly the heirs]. As you can see, it is not a simple case and you will need an attorney familiar with or who can learn about personal injury, estate, and malpractice law.
Answer Applies to: California
Replied: 6/29/2016
Frank Law Group, P.C.
Frank Law Group, P.C. | David E. Frank
Your Dad's estate is entitled to the settlement (less the lawyer's fees and costs). You should contact a probate attorney in the state where your Dad died who can help you get this resolved with your Dad's personal injury attorney.
Answer Applies to: California
Replied: 6/29/2016
Click to View More Answers: