MURRAY OGBORN: Acting as personal counsel arises in many different settings. Personal counsel, speaking of an individual, would arise when you are dealing with a professional – a doctor, lawyer, insurance agent, situations like that – where that person has liability errors and admissions insurance that covers them for the wrongful act, but the insurance is not sufficient to meet the needs of this particular wrongful act so they have exposure over and above that insurance, or the insurance company is saying sorry, we will defend you but if there is any liability found we are not going to pay the loss because the coverage just doesn’t apply in this circumstance. Or, there just isn’t enough insurance. A trucking company might become involved in a crash, and they just don’t have enough insurance for the injuries that are involved. Those are two types of situations that we see frequently. We have acted for defendants in those cases on a personal basis.
Let me use a trucking situation as an example. I have personally acted for trucking companies where they have been sued for an amount that exceeds their insurance coverage or they have been sued for punitive damages in situations like that they don’t have coverage; insurance doesn’t cover punitive damages. And that mostly occurs when their driver has been drunk, has been accused of doing something intentionally, and insurance doesn’t cover that. So they have to have a private attorney to represent them.
In those situations, it is a little touchy because the lawyer that’s representing the trucking company personally doesn’t want to and doesn’t need to interfere with the lawyers hired by the insurance company, so there is a collaboration that is required. And yet, that lawyer has to act to protect the individual company’s rights as well. You kind of walk a tight rope. If the insurance company hired lawyers aren’t representing the trucking company vigorously, zealously as the rules require, then I as the personal representative have to step in and start shouting at them and say, ”Hey do your job. Your client is really the trucking company, not that insurance company. Although the insurance company is paying the bill your loyalty is to the trucking company. So you have to kind of watch what you’re doing, cooperate on one hand, and be kind of a nasty character on the other.
