How is this possible? - Utah woman to sue herself - could it happen here?

Brian Lighthouse

I'm baffled by this.
How is this possible and could it ever happen - or has it ever happened - here in Ireland.

In a nutshell, Bagley v Bagley. Mrs Bagley was driving a vehicle and it was involved in an accident from which her husband suffered fatal injuries. She has been granted permission to sue herself by the Utah courts of appeal.
She claims she was negligent in failing to keep control of the car.

http://www.telegraph.co.uk/news/worldnews/northamerica/usa/11435964/Bagley-vs-Bagley-Widow-sues-herself-after-her-husband-dies-in-crash.html

Any thoughts?
Thanks

NoQuarter

It could happen in theory.

I think the Civil Liability Act allows claims to vest in the estate of a deceased.

So if the wife crashed a car, the husband died, the husband (had he not died) would have a claim against the driver (the insurance really) but as he did die, the claim can be taken by the wife in the deceased name.

So she is suing herself (on behalf of the deceased) but it would be the insurance company that pays out.

endacl

Must take herself out for a spin....

loremolis

How can she instruct her lawyer on each side?

Brian Lighthouse

Thanks No Quarter,
That makes some sense to me. So to pay the bills resulting from the accident - hospital, funeral etc - she has to sue in the hope she will be found negligent and the insurance policy on her husband/car will pay out.
So then if she won her case against herself and she (the driver) was found negligent, could she face a following criminal trail?

Brian Lighthouse

loremolis wrote: »

How can she instruct her lawyer on each side?

That's one element contributing to my baffledness.

NoQuarter

Brian Lighthouse wrote: »

Thanks No Quarter,
That makes some sense to me. So to pay the bills resulting from the accident - hospital, funeral etc - she has to sue in the hope she will be found negligent and the insurance policy on her husband/car will pay out.
So then if she won her case against herself and she (the driver) was found negligent, could she face a following criminal trail?

Yes it's possible. Negligence doesn't even have to be a factor. It can be simply that it was her fault. Sometimes an accident can be your fault but you haven't been negligent.

loremolis wrote: »

How can she instruct her lawyer on each side?

The defendant really becomes the insurance company so they will be instructing the defence lawyer.

arthur daly

Brian Lighthouse wrote: »

I'm baffled by this.
How is this possible and could it ever happen - or has it ever happened - here in Ireland.

In a nutshell, Bagley v Bagley. Mrs Bagley was driving a vehicle and it was involved in an accident from which her husband suffered fatal injuries. She has been granted permission to sue herself by the Utah courts of appeal.
She claims she was negligent in failing to keep control of the car.

http://www.telegraph.co.uk/news/worldnews/northamerica/usa/11435964/Bagley-vs-Bagley-Widow-sues-herself-after-her-husband-dies-in-crash.html

Any thoughts?
Thanks

If she was found negligent could sgebe charged with manslaughter

arthur daly

Brian Lighthouse wrote: »

I'm baffled by this.
How is this possible and could it ever happen - or has it ever happened - here in Ireland.

In a nutshell, Bagley v Bagley. Mrs Bagley was driving a vehicle and it was involved in an accident from which her husband suffered fatal injuries. She has been granted permission to sue herself by the Utah courts of appeal.
She claims she was negligent in failing to keep control of the car.

http://www.telegraph.co.uk/news/worldnews/northamerica/usa/11435964/Bagley-vs-Bagley-Widow-sues-herself-after-her-husband-dies-in-crash.html

Any thoughts?
Thanks

If she was found negligent could sgebe charged with manslaughter

goz83

America. The place where a child can be sued and now....where you can sue yourself.

Ken.

I'm just waiting for the bit where she calls herself to the stand,tries to question herself and pleads the 5th.

Peregrinus

loremolis wrote: »

How can she instruct her lawyer on each side?

In her capacity as the driver she is backed by an insurance company (which of course is why she is suing). And the insurance company will instruct lawyers on behalf of the defence, and indeed will take on the entire conduct of the defence.

She is basically arguing that, as the widow of a passenger killed in the car through the driver's negligence, she should have the same rights against the driver's insurer as would the widow of any other passenger killed in the car.

NoQuarter

The thing is, whether this is in the States or in Ireland, on a technical reading it's entirely right, legally speaking. I actually cant see any reason why the claim wouldn't be successful?

Uno my Uno.

loremolis wrote: »

How can she instruct her lawyer on each side?

I recall a case (the name of which I forget natch) in this jurisdiction that basically amounted to the same thing. A minor child was seriously injured in a single vehicle accident. The child sued the driver (her mother) but because she was a minor she did this by her next friend (also her mother) which meant that the mother sued herself. As pointed out above in effect the child was suing her mother's insurance who instructed the defence by way of subrogation of the claim.

I'm a bit hazy on the facts as its a long time since I read the case so I am open to correction on the above but it isn't that outlandish of a prospect.

Renegade Mechanic

Soooo..... Will she get money?




Or jail...

ohnonotgmail

Renegade Mechanic wrote: »

Soooo..... Will she get money?




Or jail...

why would she get jail? its a civil trial.

Shemale

The insurance company surely would be paying something as the husband was a passenger and so a fatally injured third party.

ohnonotgmail

Is this case as unusual as people are making out? Wouldnt the same thing happen if a parent is driving their children and causes an accident that hurts those children?

Uno my Uno.

Shemale wrote: »

The insurance company surely would be paying something as the husband was a passenger and so a fatally injured third party.

It would seem that way. The issue of a criminal prosecution is for the public prosecutor to decide, if charges were brought they would be in a separate trial.

A Civil Trial is decided on the balance of probabilities, ie if it is 51% likely that she caused the death the insurance company will have to pay out.

A criminal trial works to a much higher degree of certainty, beyond all reasonable doubt, virtual certainty. That is why it is possible for someone to be found to be liable for the death of a person in a civil court but not be convicted in a criminal court for the same death. Often such a prosecution will not even be brought as the likelihood of success is not high enough.

Uno my Uno.

ohnonotgmail wrote: »

Is this case as unusual as people are making out? Wouldnt the same thing happen if a parent is driving their children and causes an accident that hurts those children?

Exactly my point a few posts earlier.

Uno my Uno. wrote: »

I recall a case (the name of which I forget natch) in this jurisdiction that basically amounted to the same thing. A minor child was seriously injured in a single vehicle accident. The child sued the driver (her mother) but because she was a minor she did this by her next friend (also her mother) which meant that the mother sued herself. As pointed out above in effect the child was suing her mother's insurance who instructed the defence by way of subrogation of the claim.

I'm a bit hazy on the facts as its a long time since I read the case so I am open to correction on the above but it isn't that outlandish of a prospect.

Shemale

Uno my Uno. wrote: »

It would seem that way. The issue of a criminal prosecution is for the public prosecutor to decide, if charges were brought they would be in a separate trial.

A Civil Trial is decided on the balance of probabilities, ie if it is 51% likely that she caused the death the insurance company will have to pay out.

A criminal trial works to a much higher degree of certainty, beyond all reasonable doubt, virtual certainty. That is why it is possible for someone to be found to be liable for the death of a person in a civil court but not be convicted in a criminal court for the same death. Often such a prosecution will not even be brought as the likelihood of success is not high enough.

I understand that but if they have paid out and she is taking a civil action against herself how could the company be brought into it.

ohnonotgmail

Shemale wrote: »

I understand that but if they have paid out and she is taking a civil action against herself how could the company be brought into it.

the civil action is actually against her insurance company.

seamus

ohnonotgmail wrote: »

Is this case as unusual as people are making out? Wouldnt the same thing happen if a parent is driving their children and causes an accident that hurts those children?

It's slightly different. In the children scenario, it's the children who are suing their mother for damages.

In this case the injured party is probably the estate of the deceased rather than the woman herself.

ohnonotgmail

seamus wrote: »

It's slightly different. In the children scenario, it's the children who are suing their mother for damages.

In this case the injured party is probably the estate of the deceased rather than the woman herself.

exactly. In the example i gave it would the legal guardian of the children who take the action which is usually the parents.

In this example it is the woman is only taking the action as she is the beneficiary of the estate of the deceased.

234

seamus wrote: »

It's slightly different. In the children scenario, it's the children who are suing their mother for damages.

In this case the injured party is probably the estate of the deceased rather than the woman herself.

I would actually be surprised to hear that a parent was allowed to act as both te next friend of the child for litigation purposes as well as being the defendant. Is there not a requirement that litigation friends certify that they don't have a conflict of interest or any reason that would prevent them from representing the best interests of the child.

Different for executors as they are involuntarily appointments.

ohnonotgmail

234 wrote: »

I would actually be surprised to hear that a parent was allowed to act as both te next friend of the child for litigation purposes as well as being the defendant. Is there not a requirement that litigation friends certify that they don't have a conflict of interest or any reason that would prevent them from representing the best interests of the child.

Different for executors as they are involuntarily appointments.

but would the defendant not actually be the insurance company?

Claw Hammer

ohnonotgmail wrote: »

but would the defendant not actually be the insurance company?

No. Insurance companies only provide an indemnity. They are not reponsible for the incident.

ohnonotgmail

Claw Hammer wrote: »

No. Insurance companies only provide an indemnity. They are not reponsible for the incident.

i didnt say they were responsible. If somebody is suing me over a road traffic accident then my car insurance company would be the one defending the case in any civil trial. They are the ones who would be paying out after all.

234

ohnonotgmail wrote: »

i didnt say they were responsible. If somebody is suing me over a road traffic accident then my car insurance company would be the one defending the case in any civil trial. They are the ones who would be paying out after all.

But from a conflict of interest point of view you still have an interest.

So in the case where you have a litigation friend acting for a child, you should not (as far as I'm aware) have an interest contrary to theirs in the proceedings. And if you are also the defendant then you have an interest in not being found liable, you can't escape that. Even if the insurer is paying you will still be found liable and you will be forced to pay higher premiums in the future.

I know that some people might think that this will be less than the costs of caring for an injured child, but that's not how conflicts of interest work. You don't get to net the conflicts against one another and take the course which is more advantageous. There is still a conflict.

ohnonotgmail

234 wrote: »

But from a conflict of interest point of view you still have an interest.

So in the case where you have a litigation friend acting for a child, you should not (as far as I'm aware) have an interest contrary to theirs in the proceedings. And if you are also the defendant then you have an interest in not being found liable, you can't escape that. Even if the insurer is paying you will still be found liable and you will be forced to pay higher premiums in the future.

I know that some people might think that this will be less than the costs of caring for an injured child, but that's not how conflicts of interest work. You don't get to net the conflicts against one another and take the course which is more advantageous. There is still a conflict.

I still dont think there is a conflict as you would have absolutely no say in your defence. You give the insurance company the right to conduct the defence they see fit as part of your insurance contract. It would the insurance company instructing the lawyers not you. It would be the insurance company deciding whether to settle or not.

Uno my Uno.

234 wrote: »

But from a conflict of interest point of view you still have an interest.

So in the case where you have a litigation friend acting for a child, you should not (as far as I'm aware) have an interest contrary to theirs in the proceedings. And if you are also the defendant then you have an interest in not being found liable, you can't escape that. Even if the insurer is paying you will still be found liable and you will be forced to pay higher premiums in the future.

I know that some people might think that this will be less than the costs of caring for an injured child, but that's not how conflicts of interest work. You don't get to net the conflicts against one another and take the course which is more advantageous. There is still a conflict.

there is a conflict but it may be possible to obtain permission from the court to act notwithstanding this. The Story in the OP would have had the same problem and permission was granted by the court.

234

Uno my Uno. wrote: »

there is a conflict but it may be possible to obtain permission from the court to act notwithstanding this. The Story in the OP would have had the same problem and permission was granted by the court.

It's not really the same. The executor may have had no choice in their appointment and in many cases have a direct financial interest in the administration the estate and this doesn't prevent them from acting.

With litigation friends you need to volunteer to act, so there is a qualitative difference.

Little CuChulainn

Didn't this already happen in Ireland? A woman sued herself in the name of her child after a bad accident that left the child with life long debilitating injuries.

Uno my Uno.

234 wrote: »

It's not really the same. The executor may have had no choice in their appointment and in many cases have a direct financial interest in the administration the estate and this doesn't prevent them from acting.

With litigation friends you need to volunteer to act, so there is a qualitative difference.

I think you might have misunderstood the point at issue

Little CuChulainn wrote: »

Didn't this already happen in Ireland? A woman sued herself in the name of her child after a bad accident that left the child with life long debilitating injuries.

That is the case I referenced at the start of this thread!

234

Yes, and I don't mean to sound snarky, but as is normal here, can you provide a reference?

Also, I'm not familiar with the detail of Irish civil litigation procedure, so if anybody had a pointer to the relevant order or rule on litigation friends I would be grateful.

234

Looks like I was wrong.

Order 15 has no requirement that there not be a conflict of interest. It's sufficient that the next friend provide written authorisation that he may be treated as such and that's it.

Little CuChulainn

Actually I was mistaken, it was the grandmother who took the case against the mother and the MIBI

Claw Hammer

ohnonotgmail wrote: »

i didnt say they were responsible. If somebody is suing me over a road traffic accident then my car insurance company would be the one defending the case in any civil trial. They are the ones who would be paying out after all.

The insurance company have the right to take over the defence of your case. They can in theory let the other side sue and pay the damages if and when you are found liable afterwards. For obvious reasons they mostly insist via the subrogation cllause in controlling the defence. They are not however a party in the case.