Daughters death in our car nightmare

[Calden]

We are the parents to our 30 yr old daughter who died in our family car in a horrific car accident.
Accident was caused by speeding driver on wrong side of road and police are building a death by dangerous driving case.
Our daughter was not in a formal relationship and Coroner released her body to us as next of kin.
We were given a solicitor by our broker that we assume is covered by our legal expenses cover on the policy.
We explained fully to the solicitor the difficulty we were having with her live-in partner who absolved himself of any moral or financial responsibility to bury her.
Advice from solicitor was to keep all funeral receipts and in short term they would get an interim payment to cover those costs while long term a claim would be made
to secure the future of our Grandaughters and for the dependency we had on our daughter who was helping us in our fight with cancer.
Family issues and unreasonable behaviour from her partner has resulted in not only the loss of our daughter but also any access to our two Grandaughters.
Our Daughter and two beautiful girls were with us virtually every day and were our life, and they have now been taken from us by speeding young men and her seemingly psychotic partner.
The solicitor is now acting for her partner having sent him a letter offering their services and advice which he has accepted.!
We have complained to both solicitor and broker that this appears to be a conflict of interest, having furnished the solicitor with very sensitive information along with all expense receipts we are claiming.
Solicitor has said our funeral expenses claim will be handled through his claim and our file will be closed. There has been no advice or discussion about a dependency claim on our behalf.
Even our police liaison officer is confused by how our daughter dies in our car covered by our insurance and we have no legal representation from someone working for us.
We are living a nightmare.

[des8]

A terrible story, and my heart goes out to you both.

My starting point would be a high level complaint to the insurance company (not the broker, altho' I would copy him in) about the behaviour of the solicitor appointed by them.
Tell them you no longer have faith in the solicitors on their panel and you will be appointing solicitors of your choosing and sending them, the insurers , their account.

This is a right you have under "The Insurance Companies (Legal Expenses Insurance) Regulations 1990".
6.—(1) Where under a legal expenses insurance contract recourse is had to a lawyer (or other person having such qualifications as may be necessary) to defend, represent or serve the interests of the insured in any inquiry or proceedings, the insured shall be free to choose that lawyer (or other person).

(2) The insured shall also be free to choose a lawyer (or other person having such qualifications as may be necessary) to serve his interests whenever a conflict of interests arises.

(3) The above rights shall be expressly recognised in the policy.

In fact the freedom to choose actually starts when legal proceedings must be instigated – in other words when negotiations have broken down and the lawyers involved agree that legal proceedings need to be issued.
You only need to provide the basic details of your legal expenses insurance to your chosen solicitor
Altho' the insurers will probably try and direct you to another panel member, I would stand firm with the support of your new insurer.

Best wishes to you in sorting this out

[Calden]

Thank you DES8 for taking the time to reply.
Sounds like we need to find our own experienced 'heavy hitter' as we are currently in the hands of what we are told is a 'factory solicitor'.

[des8]

Insurers run panels of solicitors to deal with issues like this
As you can imagine they are not chosen 'cos of their expertise, but more for commercial reasons.

[Calden]

Six months since our daughters death and our nightmare continues as after we made a high level complaint to both the insurance company and broker about the previously mentioned conflict of interest.

The recommended solicitors suggested a compromise to have two solicitors handle the claim (both in same building but separate offices we were told)..
one for us parents as dependants (our original solicitor)
one for the main claim on behalf of daughters estate for grandkids as dependents (a different solicitor in another office !)

We were effectively backed into a corner into accepting this by being told that if we as parents made a claim using our legal expenses cover then it could not represent our daughters estate and the grandkids would suffer as our daughters partner would have to find his own solicitor to bring the main claim to the insured and we would claim through them (which is what is happening now anyway).
We were so worn down by this we went with this suggestion and another solicitor is handling the main claim (as far as we know). One thing I have insisted on is all communication is now by email.

Meanwhile as parents we have been pushing for interim funeral payments to cover our costs and we supplied receipts for the cost of an average funeral after being told to get a receipt for everything including travel costs. This was in line with our nominated solicitor only three days after the accident when we were told not to worry and we were assured that we had £100K legal cover.

We recently received half of those expenses but when pressed to chase for the rest our solicitor sent us a 'Standard Form' asking us to sign and return. That form is an 'Assignment and Agreement' on a letterhead of the other drivers insurance company. We are told that there are 'indemnity issues' with their driver and they want to reserve their right to recover any amounts from their 'uninsured driver'.

The form seems to read as an open ended agreement for the other drivers insurance to act in our name to recover anything they pay out from their own 'uninsured' driver - by open ended I mean as in no figures or any settlement terms have been quoted in the form.

The police have categorically told us that the driver was insured. They are building a heavy case against the young driver. My guess is the driver is getting top professional help paid for by his (or his parents) insurance policy.

I can't help but feel that our interests and those of our dead daughter and her children are not fully being represented here, and we are being drawn into some sort of 'deal' between insurers.

Any suggestions as to if I should sign sign this 'Standard form' or if I should re-ignite my original thoughts on finding my own solicitors would be very welcome as again we feel isolated and devoid of any trust in the nominated solicitors and the system.

[des8]

Sorry to hear of your continuing struggles, but it does not surprise me,
Claims of this sort can take years to settle.

There are three sets of claimants here; you, your granddaughters and your daughter's partner.
There shouldn't be any conflict of interest if one solicitor acts for all three, but you could all make* separate claims against the driver of the other vehicle and each use their own solicitor.
Your solicitor's costs will be met by your legal expenses insurer
There are a number of ways your daughter's partner could fund his solicitor's costs (if he doesn't diy).
He should approach different solicitors to see what they can offer.*

It seems that the other drivers insurers have withdrawn indemnity from their insured.
This could be for a number of reasons, but thankfully for those affected by his driving , his insurers still have to pay but they are permitted to try and recover their costs from him.
To ensure they have the right to pursue him the insurers will request you sign an assignment notice similar to this:
ASSIGNMENT
2.1 Subject to receipt of the compensation, this assignment ceases to be conditional and becomes fully effective such that the Claimant assigns to XYZ ins Co absolutely, all rights of recovery from the Defendant, or any other person who may be discovered to have a liability, in respect of the compensation and any legal costs paid by*XYZ ins Co to the Claimant or his or her legal representatives.
2.2 Accordingly, XYZ ins Co shall be free, but not obliged, to make claims and take legal proceedings in its own name against the Defendant or any other person referred to in paragraph 2.1 above. The costs of such claims or legal proceedings shall be borne by XYZ ins Co .

If you are uncertain about the notice refer it to Citizen Advice or ask your solicitor for an explanation

However all this takes effort and I can appreciate how*debilitating it is for you as you are fighting your own health battles.

[Calden]

You are so right about the effort it all takes, all at a time when we would appreciate having a bit of confidence in the solicitor who is handling this, supposedly on our behalf.

Like you say it appears XYZinsurance have withdrawn indemnity from their driver, and I can understand them wanting to recover their outlay, but surely they already have the right to recover from the insured if they have been given bad information by the policyholder.

I would have thought that an 'Assignment and Agreement' form might well be proposed at the time of an agreed settlement (maybe even as part of a settlement) but this particular form has too many open ended clauses before any negotiation has even begun (to our knowledge), and is totally to the benefit of XYZinsurance.

For instance..
- The claimant hereby assigns and transfers to XYZinsurance absolutely ---
- The claimant shall accept payments as agreed to or to be assessed and such payments shall be made in full and final satisfaction ----etc;
- The claimant acknowledges receipt of this payment.
- The claimant irrevocably agrees to permit XYZinsurance to make claims and take legal proceedings in the name of the claimant.
- The claimant undertakes to give XYZinsurance all information and assistance -- to give evidence in legal proceedings

This form has only come to us as we continued to press for our funeral expenses which we were led to believe would be met by XYZinsurance as an interim payment. 50% of our basic expenses have been met, but the form doesn't specifically quote any figures or reference to any amount received or claimed by us.

Our nominated solicitor continues to concern us. Answers to concerns about this form provide very little clarification that we asked for.

We are also concerned because of previous concerns we had, that as a separate solicitor has been put in place handling the main claim on behalf of the estate, that we are now being sidelined to a secondary claim, despite providing the legal expenses cover on our policy.

We worry that the spendthrift partner of our daughter will accept an early offer of settlement, and we will have no control over any negotiation regarding trust fund for the grandkids etc;

We will go see Citizens advice as you suggest, but my current thinking is we may even require a separate solicitor to advise us. I'd like to think that it's not too late for someone else to take this up on our behalf completely.

[des8]

I'm sorry, but without seeing the actual form (and possibly other documentation) it isn't possible to comment other than in general terms.
The points you raise do not seem particularly unusual, but the devil is in the full wording.

Was your daughter driving your car at the time of the accident?*

*

[Calden]

Yes - Our daughter, left our family home in our family car, our insurance with our legal cover.
But we have been forced to hand over the principal claim to 'her estate' despite the coroner giving us back her body as her next of kin.

We mainly wanted to make sure her 2 kids were taken care of and for nearly three months were given the impression we as parents of the deceased would be in control of the claim, and able to ensure a trust fund for the kids. Then our solicitor dropped the bombshell and told us that the claim had to be made through her estate and touted her live-in partner (and father) for his business.

After complaining to our broker and insurance company they came up with the proposal to use two separate solicitors telling us that if we didn't agree to this we as parents could only make the secondary dependency claim and the father would have to find his own solicitors and we would have even less control over things. Despite his denying us any contact with our grandkids we couldn't let this happen.

We worry that deals are being done, or will be done without our knowledge or input. We worry because of his past behaviour and spendthrift ways that he will agree to a lump sum deal and disappear.

This Assignment form is just another example of our loss of confidence in our solicitor. To us we are in the crazy situation where we are underwriting the very insurance company that are probably now helping the young driver to defend himself against a death by dangerous driving charge, and the only one to benefit will be our daughters live-in partner.

We are only able to put up with this because of the love we have for our granddaughters and we know our daughter would want us to fight for her girls future.

[des8]

In cases of fatal accidents such as your daughter's, there are three distinct entities that can make a claim:`*
Dependants of your daughter(your grandchildren*and possibly her partner)
Family members (yourselves )
Her estate which covers entities such as a business which suffers loss because of her passing

The Fatal Accidents Act of 1976 means that a spouse, civil partner or a parent of a child who is under the age of 18 can pursue a claim for wrongful death.€‹

IMO you would be best served by cooperating with the solicitor, and persuading them that your granddaughters compensation be paid into a trust of which one of you is a joint trustee with the partner and a solicitor.
Yes the solicitor will need paying, but his presence as a trustee should ensure the money is not squandered

Your Legal Expenses insurers are only paying your legal costs.
Can you explain exactly what you mean when you write"*we are underwriting the very insurance company that are probably now helping the young driver to defend himself "
*

[Calden]

Thanks again Des8, I do appreciate the time you take to reply.

I have asked for clarity on the structure that the trust fund will take but I'm not really getting any clear answers to my questions. I hope this is because the solicitors are waiting for the completed accident report from the police before doing anything.

My concern with the Assignment form is why we are being asked to sign such an open ended agreement at this stage.

The point I make in respect to signing the form and helping out the other driver in his defence is that based on local knowledge I don't want to do anything that may assist the driver and his parents to wriggle out of their responsibilities by doing some deal with their insurance company who act in our name, and over which we have no control. At the very least I would prefer to reserve the right to take action at a later date if the outcome of all this is not good enough.

I'm going through all this crap on behalf of my daughter and her girls.

[des8]

Without seeing the form I am unable to comment further.
I don't understand how you think signing such a form will assist the driver and his parents (how do they fit into the picture?) to wriggle out of their responsibilities, and their insurance company don't act in your name.

They have asked you to sign an assignment so that when an AGREED settlement is reached they can proceed against the driver to recover their outlay.

[Calden]

I know it may sound strange or even paranoid but there is a lot going on in the police investigation which has not yet been concluded.
So I don't want to sign an agreement that refers to us accepting this as full and final settlement when absolutely nothing has been agreed.. to our knowledge.
So I'm getting some independent legal advice on this.
Thanks again for your help.

[des8]

To obtain professional legal advice is a sensible course of action.
*Could you please keep us informed though, as it might help others who find themselves in a similar position

[Calden]

Will do.
Though my sympathies will be with anyone going through what we as parents are experiencing.
Thanks again.