To Sue or Not to Sue? That is the Question.
Frequently, clients approach our law firm with a problem and wonder if they have a case and should file a lawsuit. Generally, we believe that if you are wronged by the actions of another and have damages, that you should seek to recover and hold the at-fault party accountable. However, whether or not to file a lawsuit needs to be analyzed on a case by case basis.
If you do not have substantial damages, then filing a lawsuit may not be worth the time and money. On the other hand, even if damages are small, you may still be interested in filing a lawsuit because you were mistreated and want to file a lawsuit out of principle. An important factor to consider before filing a lawsuit is whether or not the at-fault party you are suing has a source of assets from which to recover.
If the at-fault party has adequate insurance that covers your injury or claim then there is no need to look any further. However if the at-fault party does not, then you must look to your own insurance policies to see if there is coverage for your injury or claim. If no insurance applies, you must then decide if you want to pursue the at-fault party and look to the at-fault party’s assets for recovery. If the at-fault party has substantial assets, then filing a lawsuit may be an easy decision. If the at-fault party does not, you should proceed with caution.
If you elect to sue an at-fault party and that party does not have substantial assets, you may be left with a judgment that you cannot collect upon immediately. It may take you several years to enforce it and you may have to settle for receiving installment payments for an extended period of time. Worse yet, the judgment or claim may be discharged entirely if the at-fault party files for bankruptcy. If the at-fault party files bankruptcy and completes it you may have no recourse for collecting on your judgment. The bankruptcy will likely result in a court order holding that the at-fault party is no longer liable or that only requires the at-fault party to pay you a few cents on each dollar owed.
However, under the bankruptcy laws, only certain debts, claims and judgments may be avoided through a bankruptcy. 11 USC Code § 523 sets forth which debts and claims are not dischargeable through a bankruptcy. For example, claims arising out of fraud, theft or embezzlement are not dischargeable. In addition, willful and malicious injuries caused by the at-fault party are not dischargeable. Deaths or personal injuries caused by the at-fault party while operating a vehicle or vessel under the influence of drugs or alcohol are not dischargeable either.
Generally, claims that arise from the negligence of an at-fault party are dischargeable in a completed bankruptcy. Nevertheless, the circumstances of each case should be analyzed by a skilled attorney to determine what options you have for recovery. The attorneys at the Piccuta Law Group can analyze your case and advise you as to what sources of recovery may be available and if filing a lawsuit makes sense. If you were injured by an at-fault party, contact the Piccuta Law Group today to discuss your case with an experienced attorney.
