I've been named in an personal injury lawsuit as an individual, DBA. Actually, I was an officer of a corporation that was disolved over five years ago and never did business as an individual. Do I have grounds to file a motion for summary judgement?
7 Answers from Attorneys
Perhaps... you should hire an attorney to investigate and file the appropriate motions in your defense (It might be something other than an MSJ).
If you have insurance that might cover the case, you should submit the claim to the carrier. If you delay, they may deny coverage.
ACT QUICKLY. You MUST file your answer or other responsive pleadings in a timely fashion, or you may LOSE the case.
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Assuming you don't just hand everything over to the insurance company, your lawyer could file a demurrer, or a motion for summary judgment, or maybe just send the plaintiff's lawyer a letter demanding they drop the case. DO NOT write this letter yourself. Be sure that the response to the lawsuit is timely filed and served. If someone were foolish enough to name you as a defendant in a lawsuit that is clearly without merit as to you, you could later sue for malicious prosecution. Hang up from the internet and consult a lawyer in person without delay.
Yes, if you are not the alleged tortfeasor, but merely vicariously liable as an employer, which you were not, you are not a proper defendant. However, since it is unlikely the plaintiff's lawyer understands your role, you might consider having someone contact him/her and try to get you out of the suit before you have to spend money defending. (You should not contact the plaintiff's lawyer directly, anything you say can and will be held against you!!!!). As a second step, you might be able to file a demurrer (which is done prior to answering the lawsuit or conducting discovery, and much less expensive to prepare than a MSJ). You may also have insurance coverage applicable, you should tender the defense of the lawsuit to your insurance carrier as soon as possible. Don't forget to contact someone well prior to the date for file an answer, you do not want to have a default judgment filed against you.
You need to review your facts and clarify them. If the business was disolved five years ago, when did the personal injury occur? The statute of limitations on personal injuries is one year or three years depending on which section applies. If the plaintiff filed within the limitations period it sounds like someone was doing business under that name after the dissolution. If so, you need to get to the bottom of that to make sure you do not have personal liability.
This is not something you can handle without an attorney, here is why. It is very easy to add another name to the lawsuit to try and go after more pockets. I have dealt significantly with the issue of personal liability for the actions of a business entity - and I know what buttons to push to try and get you out of it. So, while you have grounds, your motion may not succeed unless you do it right, and if then the issue is determined against you, you may be in it through trial. They will also use this to push for settlement. This is not something you can get advice and handle yourself, just as you cannot perform surgery on yourself after reading a few medical blogs. Best case scenario is you get the right lawyer, and you get attorneys fees for them filing a frivolous lawsuit against you personally. Please call my office for a free consultation.
Best, Daniel Bakondi, Esq. [email protected] 415-450-0424
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Another missing fact is whether this suit is in California or Federal court. Many of the rules of civil procedure differ significantly.
If it is still opportune to demur (California) or move for dismissal (Federal), that is preferable to summary judgment from a cost standpoint and is probably quicker and more certain in many cases.
Either way, you can raise the statute of limitations and the fact of the corporate entity as defenses by demurrer/motion to dismiss or by MSJ. I also like the idea of having a proxy contact the plaintiff and ask for your dismissal as a defendant.
So let me add my 2¢ to the discussion. Actually the statue of limitations for personal injury generally is now 2 years in California not one, if it is for property damage its 3 years. So based on that how could the corporation have been dissolved for 5 years yet still you go sued? If you were not involved personally in the negligent act then you may have grounds for a summary judgment.
So as everybody says turn it over to your insurance carrier or if you don't have one get yourself a lawyer before the time to answer runs. Again if you do have not involvement perhaps your lawyer can convince the plaintiff to let you out before you have to spend the money to answer or file a motion.
Good luck and hope this helps.
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