Often, in cases with catastrophic injuries, the primary tortfeasors are underinsured. In those cases, do not settle for inadequate policy limits without exploring all possible avenues for recovery. Sometimes, additional causes of action, which are not readily apparent, can significantly increase the value of your case.

Consider this case, which we recently resolved: A young wife and mother was tragically burned to death while shopping at a dollar store. A fire broke out, and she was faced with no means of escape. One of the primary tortfeasors, a tenant in the building, was underinsured, carrying only $1 million in liability coverage. Facing this issue, a search for additional theories of recovery was necessary. After exhausting obvious remedies, such as pursuing damages through the building’s owner/landlord and management company, creative lawyering was required to find other sources of recovery.

In this situation, a review of the commercial lease agreement between the landlord and tenant showed that the amount of liability coverage was significantly less than the amount required under the lease. Targeted discovery revealed that the tenant’s broker never reviewed the lease and failed to advise the tenant to purchase the lease-mandated coverage amount. Testimony was then elicited from the tenant, which confirmed that the tenant would have obtained the lease-required coverage, had it been advised by the broker. Consequently, an Errors and Omissions claim was successfully brought against the negligent insurance broker.

In most instances, including this one, the governing lease between a tenant and landlord typically mandates the tenant purchase certain liability coverage amounts. Critically, you should obtain the lease and determine whether the tenant breached its contract with the landlord in failing to obtain mandatory minimum liability coverage amounts. Further, argue that the plaintiff-decedent is a beneficiary of the insurance coverage lease provision.

Even with a breach of lease, be sure to conduct research on broker liability and retain an insurance coverage expert.

While no amount of money will ever adequately compensate the decedent’s family for the loss of their wife and mother, creative lawyering permitted a significantly larger settlement, beyond the insurance policy of the tenant-tortfeasor.

This Errors and Omissions claim is one example of getting creative in the face of a catastrophic injury and an underinsured tortfeasor. Don’t settle for inadequate policy limits merely because the tortfeasor tenders its policy. Conduct a thorough investigation, explore all avenues, and get creative. It may increase the value of your case by millions!