You need a lawyer for this.
Here is what the lawyer should do.
A high percentage of the time, your only other possible source of funds besides the other driver’s insurance company is your own insurance company. If you are lucky, you bought underinsured motorist coverage.
When I get an offer for the other driver’s policy limits, and I know that the only other source of money will be my own client’s underinsured motorist coverage, I contact my client’s own insurance company.
I already have established communication with my client’s insurance company, and I have already been furnishing them with copies of virtually everything I sent to the other driver’s insurance. I know what the underinsured (This is common sense for lawyers in this area.)
I tell my client’s insurance company this:
1. I have an offer from the other driver’s insurance for their policy limits. They want him to release his claim – and yours – against the underinsured driver in exchange.
2. My client will take that offer if you – his insurance company – will let him, and will let him continue to pursue his case for underinsured coverage against you, his insurance company.
3. If you, my client’s insurance company, don’t want him to release the other driver, that is fine. We won’t release him. But under Ohio law, if you don’t let him release the other driver, you have to substitute your money for the other driver’s insurance limits, and let my client pursue his claim for underinsured motorist coverage against you.
Let’s say the other driver, Zeke Zosky, has minimum limits liability coverage with Safe Auto Insurance – $12,500.00. My client, Albert Adams, has $25,000.00 in underinsured motorist coverage with State Farm; but his case is worth $20,000.00.
Safe Auto offers its limits – $12,500.00 – in exchange for Albert signing a paper that releases his claims against Zeke. (This would also release State Farm’s claims against Zeke.) I go to State Farm and ask them:
“Do you want to let Albert release his claims against Zeke, or would you rather come up with $12,500 and be able to sue Zeke? Albert and I are good either way; we can still sue you for the amount by which Albert’s claim exceeds $12,500.00.”
Why would State Farm not let Albert release Zeke? They have a right to collect anything they pay Albert back from Zeke. If he has money, they’ll be able to recover it from him, if he hasn’t been released.
Also, State Farm knows Albert will sue it sooner or later. State Farm might want to be able to say to the jury in that trial: “Go ahead and pay Albert whatever you think his claim is worth. But remember, whatever you pay Albert from us, we get to collect it from Zeke.” That can be a pretty effective argument.
Why would State Farm let Albert release Zeke? Maybe it wants Safe Auto, Zeke’s insurer, to put its money up front first. And maybe it doesn’t think it has much of a chance of collecting anything at all from Zeke.
I have been a lawyer over 30 years. If your insurance company is not at fault, it usually has the right to collect back what it pays from the person who caused the accident. This is called subrogation.
If you have a personal injury case in Cincinnati, Ohio or if you want to know what your lawsuit is worth, talk with an experienced Cincinnati Personal Injury Attorney about the case. Call me, William Strubbe, at 513-621-4775.
Because all situations are different, and because there may be other facts pertaining to your case that I don’t know about, you should not rely on this answer for legal advice. I am not your attorney, and no lawyer client relationship has been formed. All discussions are limited to Ohio law unless otherwise indicated. And past performance cannot be used to predict future results.