What would you do in this situation?

Submitted by Autotechboy44 on Wed, 07/23/2008 - 18:58

My cousin was at a gathering at a friend's house. The back deck is where the incident happened. By the way none of them were drinking. My cousin was going down the deck stairs on the right side. The house is very old and was built 1935. I don't think the friend ever did much if anything to the house when he purchased it. Well the right side railing gave and my cousin fell over and broke his arm. The friend told my cousin to claim against his h.o insurance. So finally after the adjuster investigation was complete. They sent my cousin a letter saying they are going to deny liability because the friend didn't know about it. My cousin thought he could have settled without a lawyer. He doesn't want to retain one because he doesn't want the lawyer to have to file against his friend and have to face his own friend in court and ruin their friendship. The friend and my cousin took photos of where it occured and from the photo the right side is going outwards. What should he do?

Posted: 23 Jul 2008 11:55 Post Subject:

Your cousin would still be entitled to medpay under the policy...granted it only covers medical payments, and generally there is a low limit anywhere from 1-10k...Did the adjuster offer up this coverage? If not they should have! Have cousin call and ask about it....Apparently your friend told the adjuster on the inital statement that he had no idea in the world that there was anything wrong with this deck...and clearly your cousin did not either or he wouldn't have trusted it...it's hard to find someone negligent for a hazard that they (or a reasonable prudent person) would not have known about....

The only way (now) that he can collect under the liablity portion of your friends policy is to sue him and win a judgement...The med pay though does not require any negligence, you simply have to be injured on the property.

Posted: 24 Jul 2008 05:40 Post Subject:

He doesn't want to retain one because he doesn't want the lawyer to have to file against his friend and have to face his own friend in court and ruin their friendship.

Then the only option available to your cousin is to forget about the issue and pay for the medical expenses out of his pocket. I don't think that the friend has offered any compensation to your cousin, personally, after the claim was denied by his insurer.

Posted: 24 Jul 2008 05:50 Post Subject:

I'd support Lori, sue the responsible homeowner and get a judgment against him. It would be difficult to prove the liability issue against him, because there is no proof that he was negligent on his part.

You can file a claim at the small claim court, which normally doesn't involve a lawyer. Some issues are of greater importance than friendship, and your cousin certainly doesn't want to end up in the wrong company.

Posted: 24 Jul 2008 04:03 Post Subject:

Well, I wrote up a really long post, it the wrong button and 'poof', it was gone.

In a nut shell... I don't know all the details but _knowing_ about a problem is only one part of it. The question is also _should_ the home owner have known about the problem. This goes hand in hand with the duty of care that the home owner owes to the visitor. The duty of care is pretty high as the owner invited your cousin to the home. To put it into perspective, that care is just under a business that has customer on their property in order to sell them things. The home owner is responsible for maintaining the home in good working order. Here we are talking about a safety rail next to steps. Is that not the _first_ thing an owner should make sure is in good working order?! A person can't just let their home fall into disrepair and then use the excuse that they never new about it... did they even bother to check? it appears from your post that it can be shown that this home owner has a history of not maintaining his home and/or not performing normal upkeep.

As Lori mentioned, does the policy contain Medical Payment coverage? If so, was it offered to address the injured person's medical expenses? If it should have been offered and was not, I question the adjusters expertise in the handling of the claim, which raises doubt as to if she really understands liability.

There is also the question of what kind of witness the home owner is going to make for the insurance company. In this case, a very poor one. I'd guess that he'd be very sympathetic toward your cousin. That is, that he'd not have a problem stating in court that he never repairs things around the home, perhaps should have known that the railing was bad, etc. Nothing wrong with those statements at all... the insurance company needs to consider that their insured and the injured party are friends, that is all.

Lastly, your cousin should not be afraid of getting an attorney. Few claims go to suit but it does happen. Even fewer suits ever make it to court. Plus, any suit filed would simply be to get the insurance company to pay. Suit would not be filed to "punish" the home owner.

I'd recommend to your cousin that he call the adjuster and ask about med pay. Also he should point out that the question of liability is not just 'did' he know about the problem, rather, '_should_' he have known about the problem and what kind of care did the owner owe to his guest. If the owner inspected the railing would he have then known there was an issue? I hate to say it, not known all the details, but I think I'd work out a settlement in this case.

Posted: 25 Jul 2008 11:24 Post Subject:

Yes he talk to the adjuster and he was offer med pay of 5k which still put him out. He doesnt have health insurance so he had to pay the out of pocket. He work but he work at home so he has no loss wage. tscope he did make that point of he should have check the rails but the adjuster continue to stand at his point that the friend didnt know about it. He spoke to the super and that didnt do much. He basically told him that he cant make the choice about it. His adjuster name is the one on the file. The adjuster is very tough. My cousin said if they can just compensate for the bills than that would be ok. But the adjuster stated 5k is the limit. Why is this adjuster like this?

Posted: 25 Jul 2008 11:37 Post Subject:

Why is this adjuster like this?

There are a million reasons and none...the problem is while your cousin says he would settle for just his out of pocket (and i believe you) once the adjuster accepts liablity the door is open....how much is he short?

Posted: 25 Jul 2008 01:29 Post Subject:

Yes there is med pay. But it is only 5k. And it still leaves him out because he has to pay for treatment. He has no health insurance. He has a job but he works at home. So he has no lost wages. But tscope my cousin did make that point to the adjuster but it wasnt any help. He said the insured cant be negligent for a defect he didnt know about and in which the friend is not liability. The adjuster is stand strong with this point and wont change. My cousin spoke to the super and he basically said he has no control over the choice and his adjuster is the one name on the file. What else could he say to the adjuster? Why is this adjuster like this? Isnt it easier to pay a claim than to fight it? Isnt adjuster job is to save the company money. So why push him towards a lawyer which is going to have to get their attys involve and pay their attys.

Posted: 25 Jul 2008 01:35 Post Subject:

Sorry. The other post wasnt showing up when i clicked reply. He is short another 5k. But the adjuster isnt moving. But maybe he has to take the 5k and just move on. A lawyer will just sit and talk about p&s and what not... What can he do?

Posted: 25 Jul 2008 02:24 Post Subject:

It sounds like there is a $5k med pay limit, which is typical. I'd say about the only recourse is to pursue it legally, if he wants to pursue it.

Posted: 25 Jul 2008 03:03 Post Subject:

I think he would be better off to take the 5k. Because getting a lawyer for 5k isnt worth it. He would end up paying a lawyer a third from 5k and still going to be in a hole. Thanks for everyone help. Very useful information.

Posted: 25 Jul 2008 03:28 Post Subject:

I'd bet there are _plenty_ of attorneys around who would take the case for 33% of any bodily injury settlement and not take anything of the $5k med pay.

Posted: 26 Jul 2008 11:33 Post Subject:

He can cash that 5k draft before he even talks to an attorney, he should already have that!

Posted: 28 Jul 2008 10:44 Post Subject:

But wont taking that 5k be a settlement which ends the claim forever?

Posted: 28 Jul 2008 10:47 Post Subject:

Absolutley not...the med pay coverage has ZERO to do with any liablity at all...if I walked into your home and tripped over my own feet I would be entitled to the med pay...if I got poison ivy on your property....one has nothing to do with the other.

Posted: 28 Jul 2008 01:37 Post Subject:

Once he get the 5k. He will only need 5k more to cover the medical bills and out of expense he had to pay up. So will the lawyer get him the 5k? But than he will have to pay the lawyer fee as well so how would all that work?

Posted: 28 Jul 2008 09:40 Post Subject:

Well the lawyer (no lawyer) is going to go for only 5k! He will try and get a whole lot more than that! And the attorney will (in most cases) take 33 and a third percent of his final settlement.

Posted: 06 Aug 2008 03:24 Post Subject:

In my opinion the friend should be understanding of the fact that the fall occurred at his residence and he should be willing to do what's necessary to get proper coverage for the person with the broken arm.

Visit The Insurance Files for several pages dedicated to all things homeowners insurance!

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