As a car accident lawyer Little Rock, AR respects might attest, many auto insurers are failing to settle car crash claims at an increasingly alarmingly rate. One reason has been that they have been unable to locate their insured driver in order to take his statement and get his version of events. There will be a clause in the negligent driver’s insurance policy that requires them to cooperate or contact their insurer in the event of an accident, and if they don’t, the insurer will consider that a breach of the contract, absolving the insurer of their duties and obligations.
Along those lines, what happens when you have to file suit against the person since his or her insurance company won’t settle the claim, and you can’t find them to serve them with the lawsuit either?
First, a car accident lawyer will tell you that you should know that the easiest way to clear the service hurdle is to personally serve the Defendant with the Summons (in Arkansas) or Citation (in Louisiana and Texas) along with the Complaint or Petition. Sometimes, this seems impossible, because the person can’t be found.
This is where you have to use “due diligence” in locating the Defendant. Hire an investigator to locate the person at the address listed on the accident report. Have the investigator run a skip trace or background check on the Defendant to look for other possible addresses. Write down each step you take to show that you are staying on top of locating and serving the Defendant and showing due diligence in doing so, because you will need to place all this in a motion to the court.
Adhere to the time limits for service:
There are strict time limits for serving a Defendant after filing suit, and if you fail to serve the Defendant within the prescribed period of time (without showing due diligence and moving for the required extensions of time for service), your case can be dismissed. Once you are convinced the person simply cannot be found, you should place all the notes you have taken to prove diligence and place them in a Motion for Substituted Service by Publication (in Texas) or Motion for Service By Warning Order (in Arkansas). It is imperative to strictly follow the rules in order to remain in compliance. Once service has been completed by publication or warning order, move for a default judgment, copying the insurer every step of the way, as you will later attempt to enforce the judgment against them (which will be discussed in next week’s blog).
For these reasons, it is imperative to hire a veteran litigator and experienced trial lawyer who has been involved in investigating car crashes for years.
Thanks to Steve Harrelson and our friends and co-contributors from Harrelson Law Firm, P.A. for their added insight into borrowed cars in motor vehicle accidents.