Cyclist suffers double misfortune after defendant in accident claim dies
Tell ClaudienneSunday, May 02, 2021
I am a shoemaker. On September 7, 2010 I was hit by a bus while riding my bicycle on Spanish Town Road. As a result of the injuries I received to my back and two knees I can now barely walk.
In October/November 2010 I made a “paid on consignment” arrangement with a lawyer to file a civil action claim against the bus owner, who had third-party insurance with Advantage General Insurance Company (AGIC).
In 2017 my lawyer told me that the civil action case in the Supreme Court against the owner of the bus could go no further as Advantage had informed her that he had died.
Could you kindly check with the lawyer for me, as the injuries I received have set me back and I have not been able to work.
I believe that the bus owner could have been found before he died, but over the years it was difficult for me to get information from my lawyer about my case. When I made calls to my lawyer's office her secretary always promised that she would call me but she never did.
Tell Claudienne was unable to get information from your attorney about the civil action suit she filed in the Supreme Court.
On September 17, 2020 an attorney at Advantage told Tell Claudienne that your attorney did not notify Advantage of the accident until 2013, three years after it had occurred.
The attorney told us that Advantage became aware of the accident in 2013 for the first time when it received a demand letter from your lawyer. Advantage told us that the insured had not notified the company of the accident.
The attorney said that on receiving the demand letter from your lawyer the company immediately started an investigation. The attorney said that Advantage was unable to locate either the insured (the owner of the bus) or the man who was driving the bus when it hit your bicycle.
The attorney told us that in 2013 Advantage obtained a copy of the police report on the accident. In the police report was the submission that the bus had hit you. The Advantage attorney told Tell Claudienne that your lawyer did not file a suit against the owner of the bus and the driver of the bus until August 2016, one month before the claim would have become statute barred on September 7, 2016.
Advantage told the column that both the insured and the driver are now deceased.
Tell Claudienne notes that you filed a complaint with the General Legal Council against your lawyer in September 2020.
The decision delivered by the Disciplinary Committee of the General Legal Council in regard to your complaint on January 23, 2021 was that “the complaint of professional misconduct has not been made out against” your attorney.
Among the copies of the huge file of documents your attorney gave the Disciplinary Committee is a letter she sent you dated September 13, 2019.
The letter states that when they filed your claim in court and could not find the defendant (the owner of the bus) to serve him with the court documents, the court decided that the documents could be served on Advantage. Advantage discovered that the defendant was dead after your lawyer served them with the court documents and they tried to locate him.
The letter your attorney sent you states the following:
“In light of this fact, the insurance company, through their attorneys-at-law, sought to have the service of the documents on them set aside because they were not in a position to bring notice of the claim to the defendant's attention, which the Supreme Court rules permit them to do.
“We also filed an application to ask the court that the insurance company be substituted as the defendant for the purpose of continuing the court proceedings. Both applications were considered by the court and the court ruled against our applications.
“Therefore, we are unable to continue with your claim and pursue it any further because the defendant is deceased and we have no other person to pursue your claim against.”
Tell Claudienne asked the Advantage vice-president claims, general counsel and company secretary to consider an ex gratia payment for you.
Advantage responded as follows:
“As indicated previously, given our reporting requirements among other things, it is not our practice to entertain ex gratia payments.
“We, however, broke with this steadfast principle and reviewed this matter, thus, at your request.
“Regrettably, the circumstances of the claim do not permit us to make a payment to the claimant.
“There are several issues in addition to the key issue of the matter being statue barred which prevent any such decision being possible.”
We wish you all the best.
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