Uninsured Motorist’s Coverage is insurance that one buys for the instance in which the other driver is uninsured or underinsured. Before that coverage, which has already been paid for, is triggered, several things must take place. One is that the entire policy payout of the other driver must be obtained and the second is that your carrier must consent to the settlement. What happens if one of the two conditions precedent doesn’t happen?
We see one such situation in Benjamin v Allstate Ins. Co., 2013 NY Slip Op 31248(U) June 10, 2013 Supreme Court, Suffolk County Docket Number: 11-37345 Judge: W. Gerard Asher.
"This action was commenced to recover damages allegedly sustained by the plaintiff as the result
of the actions of the defendants The Odierno Law Firm, PC and Joseph J. Odierno (Odierno) in failing to timely pay her the proceeds of the settlement of a personal injury action commenced on her behalf, failing to timely notify her of its failure to timely notify her insurance carrier of the potential of her potential “SUM” claim, and for their violation of Judiciary Law 487. The amended complaint in this action sets forth three causes of action. The first cause of action against the defendant Allstate Insurance Company (Allstate) seeks a declaration that she is entitled to supplementary underinsured motorist (SUM) benefits pursuant to her policy of insurance with Allstate. The second and third causes of action against Odierno sound in legal malpractice and violations of Judiciary Law 5 487."
"It is undisputed that plaintiff was involved in a motor vehicle accident on May 7,2004, and that
Odierno was retained by the plaintiff to prosecute an action against both the owner and the operator of the other vehicle (the underlying action). It is also undisputed that Odierno settled the underlying action on or about May 17, 2007. A review of the documentary evidence reveals that Odierno received the settlement check from the defendants’ insurance carrier on or about June 26,2007, and that he filed a closing statement pursuant to 22 NYCRR 691.20 on or about September 14,2007. However, Odierno did not disburse the amount due to his client immediately. Instead, he paid out $6,000 to the plaintiff on March I I, 2008, and the balance due her on October 18, 2008."
"To the extent that the plaintiffs second cause of action can be read to assert that Odierno’s delay
in paying out the subject settlement proceeds to the plaintiff constituted legal malpractice, the action accrued no later than October 18, 2008. In a letter that date, Odierno transmitted the balance of the settlement proceeds to the plaintiff stating “Thank you for the privilege of selecting my office to represent you in this matter. If I can be of service to you in the future, do not hesitate to contact me.” An action to recover damages for legal malpractice must be commenced within three years from accrual (CPLR 214 (6); see McCoy v Feinman, 99 NY2d 295,755 N.Y.S.2d 693 ; Rupolo v Fish, 87 AD3d 684,928 NYS2d 596 [2d Dept 201 13; Williams v Lindenberg, 24 AD3d 434,805 NYS2d 132 [2d Dept 20051). A legal malpractice claim accrues when the malpractice is committed, not when it is discovered (McCoy v Feinman, supra; Shumsky v Eisenstein, 96 NY2d 164,726 NYS2d 365 ; St. Stephens Baptist Church, Inc. v Salzman, 37 AD3d 589, 830 NYS2d 248 [2d Dept 20071; Shivers v. Siegel, 11 AD3d 447,782 NYS2d 752 [2d Dept 20041; Venturella-Ferretti v Kinzler, 306 AD2d 465, 762 NYS2d 254 [2d Dept 20031). In addition, a client’s ignorance of the alleged wrong or injury has no impact upon when the cause of action accrues (see McCoy v Feinman, supra; Alicanti v Bianco, 2 AD3d 373,767 NYS2d 815 [2d Dept 20031; King v Albany County Pub. Defender’s OfJ:2,55 AD2d 770, 680 NYS2d 289 [3d Dept 19981). Here, Odierno has established that this action was commenced on December 7,2011, more than three years after the second cause of action accrued on September 14, 2007 or, in any event, no later than October 18,2008.’"
Question: How does plaintiff prove that it was negligence to settle for $ 21,500 rather than $ 25,000 and that the other driver would have paid $ 25,000 if the attorney were not negligent?