Dirk Derrick (00:01):
Welcome to The Legal Truth, the podcast created to provide you general legal information about South Carolina law, lawyers and the legal process, and hopefully prevent you from being surprised by the unexpected. We will answer many of the questions I've been asked during the past 35 years about South Carolina personal injury claims and workers' compensation claims. We'll also discuss existing laws and proposed changes in the law and how they affect you. My name is Dirk Derrick. I'm the founder of the Derrick Law Firm and I'm your host.
Voiceover (00:36):
Please see required ethics disclaimers and show notes.
Pearl Carey (00:45):
Hello everyone. Welcome back to the Legal Truth podcast. My name is Pearl and I'm here with my co-host Dirk Derrick. Today we are discussing what to do if you have been sued.
Dirk Derrick (00:55):
I think that's probably the first emotion a lot of people feel. What should they do? Well, I would tell you that I've been doing this for 37 years and I have not found anyone who wants to sue anybody or anybody who wants to be sued and it's not a good place to be in. It depends on the situation. It depends on whether or not you've been sued, arising out of something where there's insurance coverage, that you've got insurance covering you like a car accident or you've been sued for something personal that you don't have insurance over. So it depends on why you've been sued. If it arises out of your house, somebody fell at your house, something happened at home, you may have homeowners insurance, if your dog bit somebody you may have, hopefully you got some homeowner's insurance. If it's a wreck, you got auto insurance.
(01:44):
So the first thing probably would be determine do I have insurance coverage to cover the suit? And that's I think mostly why people get sued nowadays other than business transactions. And most of time those business people have lawyers already or family court stuff and God bless you if you've gone through that. But the first thing to do is determine you have insurance and give the pleadings, the summons complaint, get it to your insurance company. Your insurance company in South Carolina will usually have a duty to defend you to hire a lawyer for you. They pick the lawyer, they defend you. It shouldn't cost you anything out of pocket to get the claim to them. Let them know your side of the story and then let them defend the case and hire an attorney to represent you.
(02:32):
If you have been sued, they'll hire an attorney immediately to file an answer on your behalf. The attorney will call you, talk to you, get your side of the story, and then he or she will file an answer on your behalf to answer the complaint. I get a lot of calls from my church members and people that I know from Conway who just all stressed out. They get sued, they're all stressed out. I know I live in the world so it doesn't stress me out that much, but if I got sued personally, they probably would stress me out. But I always tell them if it's a correct, if it's some kind of premise liability stuff, you have insurance coverage, that's what the coverage is for. Don't panic, take some deep breaths, you'll be all right.
(03:12):
But that's just the first things you do. You make sure the pleadings get to an insurance company, make sure they know you've been served because they got so much time to answer the complaint and if you don't give it to your insurance company they don't answer and you don't answer, then you could be in default after 30 days on a civil sudden complaint.
Pearl Carey (03:32):
So what happens if you do go into default?
Dirk Derrick (03:36):
There's steps. If somebody goes into default, the attorney can get an affidavit of default, try to get a default judgment. You get notice of that also, I believe, and then it'd be a damage hearing and you need to either respond individually or let your insurance company respond. If it's, like I said, if it's auto, something happened in your house, give it to your homeowners or give it to your auto insurance carrier, take it by your agent's office if you have a local agent. Just get it in their hands as soon as possible. If it's something, if everybody said we don't have any coverage, this is not something that's covered, then the person would have the responsibility of filing an answer. You would type out a response or write out a response and file it in the court with a cases pending.
Pearl Carey (04:19):
So after you give the pleadings to your insurance company, what do they do after they get you an attorney or what are kind of the next steps from there?
Dirk Derrick (04:26):
Hadn't been on that side for a long time. When I was in law school, I clerked for defense lawyer, but they will contact you. Somebody in their office will end up contacting, the insurance companies a lot of times will contact you and get a statement from you. The law office may contact you and get a statement from you before they answer the complaint. After there's a summons complaint, you get in litigation, both sides get asked other sides questions. So your attorney will get a list of questions a lot of times from the other lawyer and they may contact you and make you get your answers to those questions. You may end up having to give a deposition, which is a sworn statement as far as what happened.
(05:01):
And then ultimately both sides kind of find out what the other side, what their position is, what the evidence is, what their arguments are, and then most cases settle. If it's a civil case in South Carolina, most of them settle. If it doesn't settle, then you'd go to court and your attorney would prepare you. You would court and testify and see what a jury did or a non-jury. If it's a non-jury case, you see what a judge would say about the case.
Pearl Carey (05:27):
How would your conduct change if you believe that you genuinely are guilty or if you believe that you are innocent in this lawsuit?
Dirk Derrick (05:33):
I mean your answer would include that maybe I was negligent or here goes my side of the story. If you thought you were innocent, you'll just deny everything that they played against you. The truth of how it really works is that defense lawyers don't get on the case and probably deny everything whether you think you were innocent or not. That's the answers we get back most of the time. And there's people, I mean people can have some sincere beliefs about how things happen in some cases. Some cases the defendant, the person being sued, knows they did something wrong. And that suit usually happens if the damages are questioned or the damages are not agreed upon because by the time somebody sues you, a lot of times you will have been contacted by your insurance company because if it's a car wreck or premise liability case, they will have the attorney for the plaintiff will have talked to the insurance company before you ever get served. And a lot of times they try to settle without litigation and then litigation occurs that they can't reach an agreement.
Pearl Carey (06:36):
So what you're saying is if you get served with a lawsuit, there's a good chance that you might not have to go in front of a jury or go to court or anything like that?
Dirk Derrick (06:42):
Yeah, most of these cases settle. It comes down to whether the insurance company will pay an amount that the plaintiff will accept to dismiss the case. I think what most people don't know is if you have insurance coverage to cover for negligence or negligent conduct and it's still left up to the insurance company as to whether or not they don't pay the claim or how much they don't pay. We've had situations where the defendant, the person being sued wants the case settled but the insurance company won't pay it. And then there's cases where the person who's being sued don't want to pay. They don't think the plaintiff is owed anything and the insurance company will settle just to get it off their books and because they see a risk in it. So the person being sued can have beliefs both ways, but often the insurance company's trying to do what they want to do.
(07:35):
When you get insurance to cover like your driving or your negligence in your house, if somebody comes over and gets hurt or if you're a business and you have business liability, the insurance company has the duty to defend you, pay for a lawyer. Most of the time, defend you, pay any losses up to your policy limits. But they have the say so on whether or not they don't pay. And there's been situations where the defendant wants the money paid because if it's not paid and you go to court and the plaintiff gets a verdict higher than your insurance coverage, they may have a judgment against your properties and most people don't want that. They want to protect their assets. So there are situations where the insurance company and the defendant disagree on whether or not the claim should be paid.
Pearl Carey (08:26):
So in the circumstance where the insurance company says "Yes, we'll pay this amount" and the defendant says, "No, I don't want that amount paid." What happens there?
Dirk Derrick (08:40):
It's still the final say so is the insurance company.
Pearl Carey (08:40):
Wow, didn't know that.
Dirk Derrick (08:40):
It's their money, that's can make somebody upset that they're paying a claim, they don't think they should pay because it could affect their premiums. After that there's cases where defendants actually believe the case should be paid and it's not paid by the insurance company and it can subject the defendant's assets to being attacked. If that happens, I always advise the defendant, the person being sued, go talk to an independent lawyer, not the lawyer the insurance company hires. You can talk to that lawyer too.
(09:13):
I'd get an independent lawyer to contact my insurance company and say, we want this paid. We're afraid they may get more than the coverage and come after our assets. If you won't pay it, we want a letter from you where you indicate you're blue sky in this policy or you're recognizing there's risk, you want to fight it, but you agree that whatever verdict the plaintiff gets against the defendant that you'll pay it. And my coverage is no longer limited by the amount of coverage I bought. That way the person being sued can have comfort, but no matter what happens, his or her property and money is not going to be touched.
Pearl Carey (09:55):
That's good to know. So you mentioned blue sky, what do you mean by that?
Dirk Derrick (09:59):
That's opening up the policy limits to the sky. There's no limit. It's basically when an insurance company and their insured, the person being sued may disagree. And since the insurance company has a legal duty to protect the assets of the insured, they may say, "Hey, we know that if they get a verdict, it could be higher than your policy limits, but we don't give you peace of mind. We don't have in good faith. If they get more money than your coverage, we're going to pay for it." So it's blue sky in the policy. The policy no longer has a upper limit.
(10:35):
Now in our case, we do a lot of focus groups to determine what the value of cases are and the validity of cases before we get to court. A lot of times before we even file a lawsuit, and there's times when before the lawsuit we have done a focus group, we've shown the insurance company that the case is worth more than the policy limits and we tell them, we'll take the policy limits of the case and not go after your clients, your insured's assets just pass the policy limits. We're gone.
(11:06):
And if they say no, a lot of times we'll send the focus group results to the at-fault party if no lawsuit is pending because once they have a lawyer, we can't send them anything. But if they don't have a lawyer, we may send the person before they're sued, the results of the focus group and say, "Hey, heads up we focus group this case to see what the community thinks about it. They came back higher than your policy limits and we've told your insurance company, we'll settle for your policy limits, but they won't pay us. You may want to hire a lawyer to reach out to them and say they need to either pay us or blue sky the policy so your assets aren't at risk."
(11:45):
And we've had them do that. We've had defense lawyers contact and say, "Hey, we've blue skied it." I said, "That's fine." I mean I love to get an insurance company blue Skying policies because that's ... Now you've got unlimited policy. So a lot of times the coverage amount will control how much money you can spend to build the case and experts and stuff. I mean if you have only have 25,000 in coverage, you can't hire a whole bunch of people to go try that case because it make it economically-
Pearl Carey (12:16):
Viable.
Dirk Derrick (12:17):
Yeah, it doesn't work. The money doesn't add up. But if they blue sky, I tell our attorneys, just treat it like a $5 million policy. Build it, go build it.
Pearl Carey (12:27):
So in a circumstance where you think that the case may be worth more than your coverage, but the insurance company refuses to pay for that, what do you do from there?
Dirk Derrick (12:37):
I mean, if you tell the insurance company you want it paid and they refuse, if you get an independent attorney to contact and say, "Y'all should pay this, you'll put my client's assets at risk" and they refuse, they refuse to blue sky it. If they refuse to blue sky and pay it, you're in a situation that if they go to court and get more than the policy limits, it'll be a judgment against you. A judgment against you is bad. It keeps you from borrowing money. They can come after your assets. It's just not a good thing to have a judgment against you.
(13:09):
Now in South Carolina, if your insurance company has acted unreasonable by not paying it, then you can sue your insurance company for bad faith insurance practice and try to get them to pay them amount above the coverage, plus any cost involved with you having to sue them because they didn't act reasonably. They didn't act reasonably and pay the claim within the policy limits. The law says in South Carolina, the insurance companies have a duty to defend the person being sued. They have a duty to protect their assets and they have a duty to settle the case if it is reasonable to do so. So if they act unreasonable and don't settle the case within the policy limits, then you could sue them from bad faith.
Pearl Carey (13:51):
Well, thank you so much Dirk, for that information on what somebody can do to protect themselves if they are being sued. And thank you so much to our listeners for tuning in to another episode of the Legal Truth podcast. For more information, please visit our website at derricklawfirm.com/thelegaltruth. And we're excited to see you on the next one. Bye.
Dirk Derrick (14:10):
Thank you.
Voiceover (14:16):
Thank you for joining us on the Legal Truth podcast. If you have questions that you would like answered on a future episode, please send them to thelegaltruth@derricklawfirm.com. If you would like to speak to us directly, call us at (843) 248-7486. If you find the podcast valuable, please leave us a five star review and share the legal truth with your neighbor, friend, or family member who is seeking reliable information about a South Carolina personal injury or workers' compensation claim. Dirk J. Derrick of the Derrick Law firm Injury Lawyers is responsible for the production of this podcast, located at 901 North Main Street, Conway, South Carolina.
(14:57):
Derrick Law Firm Injury Lawyers has included the information on this podcast as a service to the general public. Use of this podcast and any related materials does not in any manner constitute an attorney-client relationship between Derrick Law firm, injury lawyers, and the user. While the information on this podcast is about legal issues, it is not intended as legal advice and should not be used as a substitute for competent legal advice from a licensed professional attorney in your particular state. Anyone seeking specific legal advice or assistance should retain an attorney. Any prior results mentioned, do not guarantee a similar outcome. The content reflects the personal views and opinions of the participants in the podcast and are not intended as endorsements of any views or products.
(15:31):
This podcast could contain inaccuracies. The information contained in this podcast does not constitute legal advice and is not guaranteed to be correct, complete, or up to date as laws continue to change. In this podcast, you'll hear information about focus groups. Please note that not all of the firm's cases are presented to a focus group. Additionally, when speaking about juries or jurors in relation to a focus group, we are speaking of focus group participants and not actual trial juries or jurors.
