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Legal Malpractice: Not All Lawyers Are Ethical

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Hutchinson, KSJames was a long-haul trucker who drove hazardous materials, until some guy ran a stop sign and he was "crushed like a grape." James hired an attorney and filed a suit against the guy's insurance company. "They settled but he didn't have much insurance so we tried to collect the truck insurance of my employer," says James. But his attorney got so many things wrong regarding truck vs automobile insurance and federal vs state law that he lost the civil case, and James believes his attorney should be charged with legal malpractice.

Understanding insurance coverage is complicated, as James explained to Lawyers and Settlements. But in a nutshell (and under Kansas law), there is uninsured (UM), which means the other party has no insurance so you have to carry that UM insurance yourself. Underinsured (UIM), means you don't have enough insurance. "If someone hits me and they only have minimum insurance that the state requires, but my injuries exceed that amount, it falls upon my uninsured coverage for the difference," says James. "The guy who hit me only had $50,000 coverage and I had $1 million coverage on my truck, so my attorney was going to file for injuries up to $950,000 on my insurance."

But it didn't work out that way. James's attorney filed a state UIM claim against his employer's insurance company but the company rejected it and reduced his policy to $50,000. "With that amount there was nothing for me to fall on because the guy only had $50,000, which I settled," James explains. "When you take 50 from 50, you get nothing. My employer's insurance company was slick and my attorney didn't fight it; it was almost like he was bought off."

James received the $50,000 in 2001, but he fought the insurance company in the Supreme Court up until recently—the insurance company won.

"I have a declaration form showing that I have $1 million coverage, and it should show where it was reduced to $50,000, but nowhere does it show that, and my lawyer chose to ignore this crucial information," says James.

"It was almost like my attorney didn't like me giving him this insurance information; he said that he was the lawyer and knew what he was doing; he wouldn't even listen to me. I told him we were going to lose before we went to the Supreme Court. We originally won a summary judgment in District court.

"In the Kansas District Court, a civil case has to be decided within 90 days upon filing. The judge took two years with my case and ruled in my favor. The other side has 30 days to file a motion to reconsider her decision. They took over six months and the judge allowed them to submit. That was wrong and my attorney did nothing about that either!

"Then the judge has only 30 days to answer their reconsideration. Instead, she took almost two years and ruled in their favor—I have no idea why she changed her mind.

"My case is so complicated and there are so many mistakes my attorney made. For example, the Kansas Corporation Commission requires you to fill out a certain form if you are under the authority of the Federal Motor Carriers Safety Administration (FMCSA). Most lawyers are familiar with this form: it confirms that you have the proper amount of insurance, otherwise you cannot haul trucks. It also shows whether you have any reductions to the UM and UIM coverage. As it turns out, the insurance company testified in court that they reduced the policy to $50,000 but they lied. I kept telling my lawyer to bring this point up and show that they had $1million coverage, but he never brought up this very important issue. Which also cost him about $450,000 because he did not do his job.

"When it comes to federal and state laws regarding truck insurance, I know more than most attorneys; most attorneys know nothing about trucks. Instead, they treat them like automobiles. And attorneys usually follow state law, which says you can reject the coverage; Federal law says you can't. My attorney filed the wrong way.

"When I finally got my say in court, I couldn't do anything, even though I can prove it should have been filed as a federal claim. My motion was denied and the Supreme Court threw my case out.

"So I have lost about $40,000 per year thanks to my attorney. I got my early retirement social security disability but it's hard to live on that. The system isn't for the little guy; if it isn't your fault and you get shafted, it sure ticks you off."

(To find out more about insurance coverage according to James, read our blog here.)

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