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NSW Solicitor Withholding Settlement from Insurance Company - Recourse Under Insurance Law?

Discussion in 'Insurance Law Forum' started by titian3900, 31 August 2016.

  1. titian3900

    titian3900 Active Member

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    Hi,

    I have been waiting for a settlement in a case we had against an insurance company. A settlement was offered and a payout accepted. We offered our insurance company (or the solicitor did) the opportunity to be a part of the legal claim. They didn't respond to the solicitor's request.

    We accepted the claim and before we did give them opportunity to make claim, they failed to respond, so we accepted the settlement and my solicitor is holding the settlement in his trust. He has failed to pay me my proportion, claiming our insurance company wants to lay claim to the funds.

    Could you please help me on what can be done under Insurance Law as I urgently need the funds that we have been waiting over a year for.
     
  2. Sophea

    Sophea Well-Known Member

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    What is your solicitor telling you? On what basis is the insurance company now claiming the funds, after having not responded? For how long had they failed to respond before you accepted the settlement?
     
  3. titian3900

    titian3900 Active Member

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    We gave them 30 days notice of our intention of us accepting taking settlement. We waited for the expiry of our timeframe we had and accepted the day after, as we received payment (my solicitor) from the other party's solicitor. They sent him a letter of demand for their expenses.
     
  4. Sophea

    Sophea Well-Known Member

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    Who sent who a letter of demand for their expenses? And what expenses? Had the insurance company been involved at any time prior to you giving them notice of your intention to accept a settlement? And how long after you agreed to the settlement did the insurance company contact you about the money?
     
  5. Rod

    Rod Well-Known Member

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    And did you make a claim with your insurance company and did they give you any money?
     
  6. titian3900

    titian3900 Active Member

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    The money we are claiming is for the hire car expenses we incurred as a result of having our car off the road for over 4 months. We asked for the assistance of the insurer in order to assist in the recovery of the costs. The Third party changed its at fault acceptance to a not at fault. They then offered to settle before the court case.

    The solicitor received the payout and will not disperse the money to me claiming our insurers have now sent a letter of demand for the cost of the repairs of the car. Then our insurance company contacted us a day or so after the third parties insurer settled.

    They had not contact us at any time before and had ignored several email attempts by our solicitor. The settlement is for more than our claim. I would like the solicitor to release my portion of the funds is that possible for me to demand that.
     
  7. Rod

    Rod Well-Known Member

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    Your insurer or theirs? If yours, did they give you any money? If so, how much in relation to the payout?
     
  8. titian3900

    titian3900 Active Member

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    It was an accident, that was not our fault, and yes we made a claim though our insurance at the time. The car took 4 months to repair. I did not receive any money from the insurance company.

    They have, to the best of my knowledge, paid for the repair of the car. We were attempting to recover hire car expenses incurred while the car was being repaired. We attempted to get our insurance company involved in the cost of the recovery but they ignored our correspondence (over 5 emails).
     
  9. titian3900

    titian3900 Active Member

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    We have an insurance payout from an agreed settlement with the other party. However the solicitor is now withholding the payout till his fees are being paid by the other party solicitor.

    Does he has any right to withhold our payment even though his fees was awarded on top of settlement?
     
  10. Iamthelaw

    Iamthelaw Well-Known Member

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    This is a question regarding trust money.

    There are very strict obligations surrounding trust money both at common law and in statute - Part 4.2 Legal Professional Uniform Law (LPUL) (among others).

    I don't know enough about the facts of your case to give an in depth response but in saying that - From what you've said the funds are from a settlement? Great! And you want the funds? Write a letter to him requesting that the funds be disbursed to you immediately. *The lawyer can exercise a lien over a portion of funds that would constitute his professional fees or issue you with an invoice for his fees and then following 7 days withdraw that portion of the money (for his fees) s144 LPUL and Rule 48 General Rules.

    In summary - Write a letter to your lawyer requesting that he provide you with your settlement.
     
    #10 Iamthelaw, 25 September 2016
    Last edited: 25 September 2016

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