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  1. #1
    Join Date
    Feb 2017
    Posts
    25

    Question Is it Legal Malpractice to Not Sue the Owner of a Vehicle Involved in an Accident

    My question involves an injury that occurred in the state of:

    I was rear ended by a driver who was driving a friend's car with friend's knowledge and consent. Driver himself did not have insurance because he had 3rd degree suspended driver license and had history of DUI. Friend (owner) of vehicle had liability coverage so my lawyer went after but he did not sue the owner of vehicle personally.. When police officer asked the owner ..he said he was out of state at the time of accident but the driver(bad one) had access to the vehicle that hit me.

    I asked him why did not you sue car owner personally he said because he does not think owner is responsible.. I argued owner knew (or should have known) about DUI and 3rd degree license suspension ..than owner is responsible for negligible entrustment or vicarious liability ..but my lawyer was not convinced and he did not sue owner even after my request. Is this legal malpractice?

  2. #2
    Join Date
    Mar 2013
    Posts
    17,129

    Default Re: My Personal Injury Lawyer Did Not Sue Owner of Vehicle .is It Malpractice

    Quote Quoting curiousv
    View Post

    Is this legal malpractice?
    Not necessarily and probably not.

    If all your lawyer did was "go after" the liability policy and got you a settlement there wasn't any reason to sue anybody.

    Did your lawyer get you a settlement?
    Did your lawyer actually file a lawsuit against the driver without naming the owner of the vehicle?
    What was the liability limit on the owner's policy?

    On another site you revealed that you are in the state of Washington.

    Negligent Entrustment
    If a person in control of a vehicle and responsible for its use knew, or should
    have known in the exercise of ordinary care, that the person to whom the vehicle
    was entrusted was intoxicated, reckless, heedless or incompetent, then the
    person entrusting the vehicle is liable for resulting damages.
    Mejia v. Erwin, 45 Wn. App. 700, 703, 726 P.2d 1032 (1986).
    From:

    https://c.ymcdn.com/sites/tida.site-...mmaries/WA.pdf




    Vicarious Liability applies to employer/employer relationships.

  3. #3
    Join Date
    Jul 2018
    Posts
    1,648

    Default Re: My Personal Injury Lawyer Did Not Sue Owner of Vehicle .is It Malpractice

    Quote Quoting curiousv
    View Post
    Driver himself did not have insurance because he had 3rd degree suspended driver license and had history of DUI.
    Was any of this known to the owner of the car?
    Quote Quoting curiousv
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    I argued owner knew (or should have known) about DUI and 3rd degree license suspension
    What does this mean? Did the owner, in fact, know about these things? What facts existed that would reasonably allow for the conclusion that the owner should have known about them?
    Quote Quoting curiousv
    View Post
    owner is responsible for negligible entrustment or vicarious liability
    Nothing in your post indicates that vicarious liability might exist (that's why it's important to know the state where this happened). "Negligible" and "negligent" mean very different things, and, as indicated above, you haven't posted any facts that would support a negligent entrustment theory.
    Quote Quoting curiousv
    View Post
    my lawyer was not convinced and he did not sue owner even after my request.
    Is your lawsuit still pending? If so, you can tell your lawyer to amend the complaint to add the owner as a defendant under a negligent entrustment theory. If he declines to do so, you're free to fire him and represent yourself or hire a lawyer who will handle the case as you want.
    Quote Quoting curiousv
    View Post
    Is this legal malpractice?
    Unlikely. First of all, if your case is still pending, then you haven't yet been damaged. Second, even if the lawsuit is done, there's an argument that, when the lawyer filed the lawsuit without including the owner, you could and should have retained new counsel to amend the complaint. Third, if you named the owner, his insurance would have stepped in to defend him, and you'd be dealing with the same policy limits. Fourth, your argument that the owner knew or should have known about the driver's lack of license, etc. could work against coverage -- i.e., the insurer might be able to deny coverage if the owner knew or should have known that the driver lacked a valid license. Fifth, if your damages are less than the policy limits, then you could have no damages. Sixth, even if you had damages in excess of policy limits, unless the owner has assets and income that make him able to pay a judgment in excess of policy limits, it would matter.

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