October 2014 Network Journal - Pg 11
Stephen T. Sherer
Sherer & Wynkoop, LLP
730 N Main St., P O Box 31, Meridian, ID 83680
An argument can certainly be made for the supposition that insurance encourages lawsuits. When an insurance company is involved, plaintiffs’ attorneys know there is a pot of money from which recovery can be had. This doesn’t recognize the fact that intentional torts, such as shooting someone who is knocking at your front door, are generally not covered by homeowners’ insurance policies.
If an attorney is not aware of any insurance available to pay a judgment, then the only reason to sue is if you believe the party you are suing has assets that can be attached by a judgment against them. This usually involves an asset search, which can be a somewhat expensive proposition in itself. To the extent you own nothing but a house with a mortgage, a car and modest balances in financial accounts, many attorneys evaluating the utility of a lawsuit will decide the risk of obtaining a worthless judgment is too great to expend the time and money necessary to obtain the judgment.
That’s my judgment, anyway.
M. Reed Martz
Freeland Shull, PLLC
405 Galleria Ln., Ste C, Oxford, MS 38655-2249
Yes, I believe the availability of insurance–if known to the opposing party–invites lawsuits.
I do not have any statistical studies but my own experience as a civil defense attorney for over a decade convinces me that as soon as the availability of insurance coverage is known to the opposing party the likelihood of a lawsuit increases substantially. I have had many cases in which my client, the insured, said something to the effect of, “Everything appeared on its way to a resolution until I said I had insurance...”
While my experience has not dissuaded me (personally) from obtaining certain types of insurance, it has convinced me that I will not make the availability of that insurance known to another party unless required by the law or circumstances. There is no sense painting a bull’s-eye on your back.
In September we asked our affiliated attorneys to share information about the procedures in their community for posting bail after a serious incident, and how that could be accomplished by an individual who does not have family members nearby to act on his or her behalf. After the September journal came out we got one final response that will prove useful to Wisconsin members who may have wondered–
If a member is involved in a self-defense shooting and is arrested, what should he or she have done in advance to provide access to funds for bond if no family is available to assist? How does the state in which you practice handle bail for murder? For aggravated assault?
Mark D. Biller
P.O. Box 159, Balsam Lake, WI 54810
Wisconsin does not have particularized statutes which deal with high level felonies. Rather, the general provisions which apply to all cases are heavily weighted towards reasonable conditions of bond.
Counterposed against a presumption favoring release on bond, the court can consider the need to protect the public from serious bodily injury, prevention of intimidation of witnesses and the degree of violence involved in the offense. Even against this presumption favoring release it has been my experience, both as prosecutor and defense attorney, that when death or grievous bodily injury has come about by violent means the prosecutor’s recommendation for cash bond will be high, and the judge will be inclined to take that recommendation seriously.