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The Ultimate Weapon

When people speak with scorn regarding personal injury law, they often complain that it is just a situation where the lawyer and client are seeking deep pockets. Well, insurance companies, have deep pockets but are obviously not in the business of readily dipping into them. Nevertheless, it is true that it is preferable to seek compensation from an insurer than from an individual. The law, however, recognizes that the injured party may not have sufficient compensation from the available liability insurance coverage. There are devices available, pursuant to the Massachusetts Rules of Civil Procedure, which exist to protect the plaintiff in the event that he/she obtains an excess judgment. In pursuing these remedies the liability insurer, otherwise reluctant to pay its policy, may do the appropriate thing.

What happens in a situation where the plaintiff has suffered significant injuries and the automobile liability insurance policy is only one hundred thousand dollars? A plaintiff can seek an attachment of the tortfeasor’s real estate or bank account. The purpose is to ensure there will be sufficient assets to satisfy a judgment. The standard is an insufficiency of insurance coverage and a reasonable likelihood that the plaintiff will recover. Massachusetts Rules of Civil Procedure 4.1 (c).

Under Rule 4.2 of the Massachusetts Rules of Civil Procedure, trustee process can be brought to attach a bank account in personal injury actions except under actions for malicious prosecution, for slander or libel, or for assault and battery as well as specific recovery of goods and chattels.

Look, it is not my favorite thing to attach a defendant’s property; it is however something that must be contemplated in the right situation, particularly when dealing with an insurance company that in my opinion is unfairly withholding a settlement offer. Believe me, it will give them pause.

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