QUESTIONS RELATIVE TO PRESENTATION ON RANDOM LEGAL QUESTIONS 7-8 PART A

There are a number of different dot.com services that rate lawyers through peer solicitation approvals and other such devices.   One such dot.com business is styled Avvo;

As an adjunct to their rating services they have an open forum for various legal questions to which many answers are provided by various lawyers seeking to be rated by Avvo.

 

So, I am utilizing a number of those questions in this presentation/ article for the blog of Steven H. Wilhelm, APC.

This paper will be divided into three separate sections, A,B, and C.

QUESTION #7

I have an S Corp in Illinois, broker is suing me for cargo that was stolen, but I don’t have the money.  I have an S corp small trucking company in Illinois;  last summer an individual contractor (owner operator) was hauling a trailer with cargo arising out of the relationship with the above referenced broker, and which was stolen.  My insurance wouldn’t cover it because of “driver negligence” so after a few months the broker is suing my company for $224k.  My company does not have even a quarter of the money that would be required to pay an obligation in that amount.

What kind of lawyer do I need to hire.  The lawsuit is from FL.

ANSWER TO QUESTION #7

First of all it sounds as though you are going to be sued in Illinois- so most logically a litigation lawyer from Illinois would need to represent you;

It would be helpful if the lawyer, not only has tried lawsuits, but also that he/she have some familiarity with shipping of goods, lawsuits and claims/  insurance claims/ and then also experience in interpretation of contracts.  The reason for my statement is that so because most of these legal subject areas will be involved in defending this case.

Also, since your insurance is denying coverage based upon alleged negligence of the driver, you might also want to have an insurance coverage and or bad faith insurance practices lawyer at least look at your policy etc.

Generally speaking insurance companies have a duty to defend even though they might not think the risk is covered;

A duty to defend arises separate and apart from a duty to indemnify (ultimately resulting in them having to pay the damages sum) ;

In sum,  ‘defending’ is providing a defense to the covered risk—indemnification is the payment of the claim as an item that fits squarely within the risk that is covered by the policy.

So, an attorney with those foci would be of great assistance. So, if they will provide a defense but not indemnity, then at least your legal fees and costs of court should be covered.

However , $224k is a large claim and a huge chunk out of cash flow of the business.

So , if no defense is going to be provided, and depending upon the assets of the company as well as the income; it might be worth having the company go out of business etc. if it does not have assets to respond;  or at least meet with a bankruptcy lawyer to discuss the options available.

Another possibility would be to enter into some sort of a stipulated judgment rather than dragging it through the courts etc. and running up legal fees and costs; this type of an agreement would give your company a  fixed amount of time to pay back the money.

– and then assuming that it is primarily debt , if the obligated party i.e. your company, if your company ends up taking a bankruptcy well, then that is just the way it goes.

Caveat though, as if the filing of the bankruptcy is too close on the heels of the other stipulated agreement , it might appear that you never had any intention when signing the agreement to do anything other than just throw the claim into bankruptcy;

if that were proven then that would be bad faith and you could be liable for bankruptcy fraud which is a criminal violation subjected you to up to five years in prison and a $500k fine.

OK, if any questions you can call or ask questions at the presentation.

 

QUESTION #8

Defendant’s lawyer added verbiage to a proposed judgment that he was tasked with writing,  which addition awarded costs to one of the defendants?

It was left up to the defendant’s lawyer to fill out and file the judgment paperwork after I won a lawsuit.

The lawyer took the liberty of awarding “costs” to the defendant who was not found guilty, even though the judge said nothing about it at trial.

Backstory:  One of the defendants I sued for conversion of my property got off having to go to trial because her lawyer filed a trail de novo document excluding her and I didn’t know how to file my own trial de novo request including her.

My witness was told by the other defendant that she threw my belongings out and on the stand the other defendant (her husband) said she “might have” thrown my things out.  The judge ruled that there wasn’t enough evidence to convict her.  The Judge did not state that “costs” would be awarded to the second defendant.

ANSWER TO QUESTION #8

This is the classic case of ‘burden of proof’ and what happens if you the plaintiff in the matter do not meet your burden of proof, i.e. by the preponderance of the evidence in Civil Proceedings  (interp to mean, 51% of the evidence);

From the description of the facts, there does not seem to be more facts and evidence supporting one side or the other; e.g. the evidence both pro and con regarding the case is a draw-

In such settings,  the side having the burden of proof would lose when the evidence is even.

Must be more likely than not, ( another way of describing a preponderance of the evidence)  that Mr. So and So, did all of the following things to the victim- and those matters are as follows:  here the elements of the civil action/claim would need to spelled facts interwoven with the actual supportive facts.

As to the unauthorized ‘addition of costs’  generally speaking if the defendant, or a defendant of many is found to be the prevailing party, then as a matter of law, in California, the non-prevailing party will have to pay the other parties allowable costs.  The Court, once made aware of the same, and assuming they are allowable costs under the Code of Civil Procedure, would then award the costs to the prevailing party.

Ultimately, based upon these facts , and presuming you can meet your burden of proof, you should be able to strike out the award of costs.  Or is the other party was truly the ‘prevailing party’ then they would obtain their costs of court.

 

Respectfully Submitted,

Steven H. Wilhelm, A.P.C.

©Steven H. Wilhelm,A.P.C.2015

By | 2015-10-27T09:59:09+00:00 October 27th, 2015|