1) In a LEGAL malpractice case, if a claim is to be paid (let’s base it on a good claim), who has the overall say to make the decision that the claim would be paid out of the insurance. Is it the attorney, or the insurance company, or both?
2) On the other hand, if the claim is medium in strength and the insurance company is stubborn to pay, can the attorney insist the insurance company pay it and can that attorney make the final decision to have it paid?
Please answer both questions and share any other comments so I can learn more.
Your question is unclear- are you saying when YOU sue insurance, who decides to pay the COMPANY or their ATTORNEY? Correct? If so here is the answer:
The attorney counsels or advises the company, it is not the company. Can the attorney be liable for its advice absolutely, thats the whole point of malpractice. But as far as who pulls the trigger on paying a claim, that will never be the lawyers decision always the company. The company can tell the lawyer he has the authority but that authority is granted to him as their agent, its not implied due to his position as a lawyer.
In civil law the lawyer can never make a party settle, thats always the clients choice.
The insurer has both the duty to defend and the duty to indemnify. In carrying out its duty to defend, the insurer, through its adjusters with advice of its own legal counsel, makes the decision whether to settle or fight it out in court. Once the case is resolved, then the duty for the insurer to pay kicks in.
The insured attorney could agree to settle and pay out of his/her own pocket to keep his/her insurer out of the picture, but that is rare unless it is a smaller claim with a value within the range of the deductible.
The insured attorney cannot insist his/her insurer settle and pay.
I would agree with Dennis's response because I think what you are asking is whether the attorney being sued for malpractice has the final say in the matter and whether that attorney can force the insurance company to do one thing or the other? Once the claim is submitted to the insurance provider, "in the real world" they make all the decisions from there on based on the policy coverages and agreements with the insured attorney. So, as to your question (1), if the attorney submits the claim to the insurance company, then the insurance company pays it assuming they have an obligation to do so under the policy. As to question (2), the answer is no. The insured attorney cannot "insist" the insurance carrier pay it, the attorney is bound by the policy, so he can't force the issue.
