Say someone files a suit for wrongful death of a loved one (both parties
reside in California, where the suit is filed), and the defendant's insurance
company conducts an exhaustive investigation which determines that the death
was the result of an accident. Plaintiff agrees to a settlement offerred by
the insurance company and receives the money. I am told that the plaintiff
can henceforth not pursue any criminal action against the defendant in
connection with the death, because that by receiving the settlement, they are
agreeing with the insurance company's finding that the death was accidental.

To take the money and then pursue criminal legal action against the insured
would represent insurance fraud, since the insurance company pays out only in
the case of accidental death, and not if the death was a result of criminal
intent. If the plaintiff believes the death was a result of criminal intent,
then his remedy is against the one who committed the crime, and the insurance
company should not be a part of this action since they only pay out in the
event of an accident. Is this true, and if so is it part of statutory law in
California?
--
Theodore A. Kaldis
kaldis@worldnet.att.net

On 7/1/04 16:22, in article 3FFC3251.4FAED368@worldnet.att.net, "Theodore A.
Kaldis" <kaldis@worldnet.att.net> wrote:
Say someone files a suit for wrongful death of a loved one (both parties reside in California, where the suit is filed), and the defendant's insurance company conducts an exhaustive investigation which determines that the death was the result of an accident. Plaintiff agrees to a settlement offerred by the insurance company and receives the money. I am told that the plaintiff can henceforth not pursue any criminal action against the defendant in connection with the death, because that by receiving the settlement, they are agreeing with the insurance company's finding that the death was accidental. To take the money and then pursue criminal legal action against the insured would represent insurance fraud, since the insurance company pays out only in the case of accidental death, and not if the death was a result of criminal intent. If the plaintiff believes the death was a result of criminal intent, then his remedy is against the one who committed the crime, and the insurance company should not be a part of this action since they only pay out in the event of an accident. Is this true, and if so is it part of statutory law in California?

The thinking is wrong on two counts: with minor exceptions, an individual
does not bring a criminal action, the state does. While the state may be
influenced in its decision by the attitude of individuals harmed, and may
need the cooperation of those individuals as witnesses, it is solely the
prosecuting attorney (DA, etc.) who makes the decision, and who can coerce
witnesses under pain of contempt, etc.

Furthermore, some years ago when I was mugged and stabbed I asked my
insurer, the Metropolitan Life Insurance Co., if they would have paid double
indemnity had I died. The answer was yes, homicide is within the purview
"accidental death".

Your mileage may vary and I am not licensed in California.

Tam wrote:
Theodore A. Kaldis wrote:
Say someone files a suit for wrongful death of a loved one (both parties reside in California, where the suit is filed), and the defendant's insurance company conducts an exhaustive investigation which determines that the death was the result of an accident. Plaintiff agrees to a settlement offerred by the insurance company and receives the money. I am told that the plaintiff can henceforth not pursue any criminal action against the defendant in connection with the death, because that by receiving the settlement, they are agreeing with the insurance company's finding that the death was accidental.
To take the money and then pursue criminal legal action against the insured would represent insurance fraud, since the insurance company pays out only in the case of accidental death, and not if the death was a result of criminal intent. If the plaintiff believes the death was a result of criminal intent, then his remedy is against the one who committed the crime, and the insurance company should not be a part of this action since they only pay out in the event of an accident. Is this true, and if so is it part of statutory law in California?
The thinking is wrong on two counts: with minor exceptions, an individual does not bring a criminal action, the state does.

Yes, I'm aware of that.
While the state may be influenced in its decision by the attitude of individuals harmed,

Which is essentially what I was talking about.
and may need the cooperation of those individuals as witnesses,

In this scenario, there is no issue of witness to the event. Say that the
plaintiff had not been present when the death took place, and indeed wasn't
even in the same county.
it is solely the prosecuting attorney (DA, etc.) who makes the decision, and who can coerce witnesses under pain of contempt, etc.

And whose decision should be made on the basis of the facts of the case, and
not on the basis of (say) any emotional attachments.
Furthermore, some years ago when I was mugged and stabbed I asked my insurer, the Metropolitan Life Insurance Co., if they would have paid double indemnity had I died. The answer was yes, homicide is within the purview "accidental death".

Yes, but in this case your insurance would have been paying your estate for
your death. In the case above, a loved one of the decedent is suing someone
else, and the insurance company of the person being sued is paying out to
cover any potential negligence on the part of the person being sued for the
accident that caused the death of the loved one. For this to be analogous,
the question would be, would the MUGGER"S insurance company pay for your
injuries because he stabbed you? I think the answer to that is obvious
(assuming he even had insurance).

In the case that I am talking about, the finding (of the insurance company)
was that the death was accidental and NOT the result of any foul play. Had
there been foul play involved, the insurance company would NOT have paid out.
(This is actually more than just a hypothetical.) What I'm trying to
determine from the above is whether the potential fraud issue is a general
principle under California law under these circumstances, or whether it might
have potentially been a condition of an agreement that had to be signed in
order to receive the payout.
Your mileage may vary and I am not licensed in California.

And I'm asking only for information, and not any legal advice.
--
Theodore A. Kaldis
kaldis@worldnet.att.net

"Tam" <tamsuraiya@yahoo.ca> wrote in message
news:BC21F4DB.4C18%tamsuraiya@yahoo.ca... On 7/1/04 16:22, in article 3FFC3251.4FAED368@worldnet.att.net, "Theodore
A. Kaldis" <kaldis@worldnet.att.net> wrote: Furthermore, some years ago when I was mugged and stabbed I asked my insurer, the Metropolitan Life Insurance Co., if they would have paid
double indemnity had I died. The answer was yes, homicide is within the purview "accidental death". Your mileage may vary and I am not licensed in California.


That's an interesting insight to "accidental" as applied (at least by
Metropolitan) in life insurance policies that cover the victim. However,
homicide might be treated very differently under liability policies that
insure the third-parties who caused the death.

For example, I believe that if an assailant is first found guilty of
intentional wrongdoing (such as murder) in criminal court, then the victim
(or his estate) may be estopped from collecting under the defendant's
(typical) liability policy for negligence based on that same conduct. You
could sue the murderer, but you couldn't collect under his insurance.

The carrier's position makes sense: "Hey, it's been proven beyond a
reasonable doubt that our guy did it on purpose, and we do not insure
against intentional misconduct." Indeed, it would be considered against
public policy (at least in some states) for an insurance carrier to sell you
a policy that would cover you for murdering somebody.

(The original question is really about the opposite scenario: The insurance
has already paid, and the question is whether this precludes subsequent
criminal prosecution. And I would doubt that the State is bound or limited
by the insurance company's decision to pay -- or even by the verdict in a
civil action.)


This is not to say there couldn't be situations where somebody collects
under a policy that is only supposed to cover negligence, but the defendant
also gets convicted under a criminal statute for the same incident -- I'm
just talking about typical Exclusions in many liability policies, such as
the negligence coverage in homeowner's insurance. I certainly don't know any
California law on the subject.

Plaintiffs in assault-type lawsuits will often plead in the alternative,
alleging intentional injury in one Count of the Complaint (although
realizing that success on this theory might have negative implications for
insurance coverage), and negligence as a separate Count or cause of action
of the case. This way, at least the insurance company is on the hook to
defend against the negligence claim, and perhaps there will be a settlement
before a jury decides whether it was accidental or not.

On 7/1/04 19:22, in article bthmgj02m2r@enews4.newsguy.com, "Ted Kerin"
<tf.kerin@gte.net> wrote:
Plaintiffs in assault-type lawsuits will often plead in the alternative, alleging intentional injury in one Count of the Complaint (although realizing that success on this theory might have negative implications for insurance coverage), and negligence as a separate Count or cause of action of the case. This way, at least the insurance company is on the hook to defend against the negligence claim, and perhaps there will be a settlement before a jury decides whether it was accidental or not.

Yes, and the burden of proof in criminal cases is quite different from that
in civil ones. Also, the duty of the insurer to defend is somewhat broader
than the obligation to pay (as I recall the justification it has to do with
not knowing the facts and law until trial). The cost of a trial can exceed
the settlement value of the claim: hence a whole industry of petty
("bottom-feeding") trial lawyers who are said to "extort" money from
insurance companies on the basis that otherwise they will run up their
defense costs. (This can't happen in other countries where contingency fees
are virtually unknown (they exist, but on a limited scale now, in England)
and where the loser pays the costs, including lawyers' fees, of the winner.)