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To File a Lawsuit or Not to File a Lawsuit, That is The Question!

To file a lawsuit or not to file a lawsuit, that is the question!

Filing a lawsuit in either federal or state court is predicated upon a number of factors. There are a number of reasons why a lawyer may decide to proceed with the filing of a lawsuit.

THE FILING OF A LAWSUIT TOLLS THE RUNNING OF THE STATUTE OF LIMITATIONS.

Every lawsuit is governed by a statute of limitations which is the period that a party has in which to file a the lawsuit. For example, in Idaho the time period an adult has in which to file a lawsuit against another person or institution for negligence is two years from the date of the accident. Other causes of action have different statutes of limitations.

One significant reason a lawyer may decide to file a lawsuit is to avoid the running or expiration of the statute of limitations. Once a lawsuit is filed, the running or expiration of the statute of limitations is tolled until the case is concluded. So, the filing of a lawsuit protects a party’s ability to seek their legal rights and remedies by tolling the statute of limitations.

THE FILING OF A LAWSUIT TYPICALLY RESULTS IN THE REASSIGNMENT OF A SENIOR CLAIMS REPRESENTATIVE TO THE CLAIM.

Several insurance companies assign relatively inexperienced claims representative to adjust claims where the claimant has yet to retain counsel. The filing of a lawsuit typically results in the insurance company reassigning the claim to a senior claims handler with higher authority to resolve a claim.

THE FILING OF A LAWSUIT HELPS DETERMINE WHAT THE OTHER PARTY’S POLICY LIMITS ARE TO HELP YOU EVALUATE THE COST/BENEFIT OF PROCEEDING TO TRIAL OR NOT.

Each policy purchased has a policy limit. The policy limit determines in large part the amount of the premium the policyholder pays for the purchase of the policy. The policy limit is the maximum amount of money the insurance company pays to settle a claim on a per person and aggregate basis.

Some insurance carriers refuse to disclose to the other party the policy limit of their insured’s policy unless and until a lawsuit is filed. Once the lawsuit is filed, the parties in the lawsuit are entitled to serve upon the other written questions called interrogatories as well as requests for production of documents. In Idaho, the terms of an insurance policy are discoverable through the course of discovery. This means that a party is required upon demand to disclose to the requesting party the disclosure of the terms of any insurance contract.

Before you settle a claim, you may wish to know what the policy limits are in question as well as whether there is any umbrella or excess insurance coverage in force and effect over and above the primary policy before you agree to settle the claim.

THE FILING OF A LAWSUIT PROVIDES THE PLAINTIFF WITH THE ABILITY TO DISCOVER WHETHER THERE ARE ANY OTHER PARTIES LIABLE FOR YOUR INJURIES.

Not only is it important to determine what the policy limits of the responsible party’s insurance policy, but you also need to determine whether there are any other parties that are also liable for your injuries and damages. These types of claims include, but are not limited to,

– Claims involving a driver working within the scope and course of his or her employment;

Claims involving drunk drivers;

Claims involving the State of Idaho, any municipality or any political subdivision;

– Claims involving a driver operating a motor vehicle registered, titled or otherwise purchased by some one else and where the owner has given the driver permission to drive the vehicle; and,

– Claims against a general or limited partnership.

A claim against another driver operating a motor vehicle while the driver is working within the scope and course of the employee’s employment may also make the employee’s employer responsible for the injuries and damages caused by the negligent employee. The doctrine referred to is called, "respondeat superior," and makes the employer secondarily liable for any injuries and damages negligently caused by an employee while the employee is working within the employee’s scope and course of employment.

A claim involving a drunk driver may also make the purveyor of the alcohol responsible for the injuries and damages caused by the drunk driver if the purveyor provided the alcohol to the drunk driver at a time when the drunk driver was "obviously intoxicated" or was while the driver was under the legal age to drink which in Idaho is 21 years of age. However, "Dram shop actions" against the purveyor of alcohol require the injured party to serve a notice of dram shop upon the purveyor of alcohol within 180 days of the date of collision before a suit is filed. Filing suit against the drunk driver allows the plaintiff to engage in discovery to determine the identity of the purveyor of alcohol.

Tort claims against the State of Idaho or any municipality or political subdivision also require that a notice of tort claim be timely served within 180 days following the date of claim arose. Filing a lawsuit early in a case helps the plaintiff determine whether there are parties secondarily liable which need to be served with a notice of tort claim.

When a negligent driver is operating a motor vehicle owned by someone else, the owner of the vehicle may also be responsible up to the policy limits of the insurance policy for the injuries and damages caused by the driver’s negligence. Discovery in the form of interrogatories, requests for production of documents or depositions.

A claim against a partnership requires special attention as well to insure that all of the partners in the partnership are properly joined as parties to a lawsuit.

JUSTICE DELAYED IS JUSTICE DENIED.

Every court in each and every judicial district has a large number of cases on the Court’s calendar. This is referred to as the Court’s "backlog" of cases that creates a delay in getting new cases heard as quickly as a party would like. Sometimes because the backlog of cases is so large, the delay in scheduling new cases for trial may take up to a year from the date the lawsuit is filed.

In Idaho, once a lawsuit is filed, the plaintiff has up to 6 months to serve a copy of the summons and complaint upon all defendants. Once a defendant is properly served, a defendant has 20 days in which to file either a notice of appearance or an answer to the complaint. If the defense counsel files a notice of appearance, the Idaho Rules of Civil Procedure mandate that the plaintiff serve a Notice of Intent to Enter Default and Take Default Judgment before the court will take any further action in the case including the calendaring of a trial. Once the notice of intent is served, the Defendant has 3 additional days to file an answer or the court may impose the entry of a default against the defaulting party.

Once all defendants have filed an answer to the complaint, the Idaho Court will schedule a a status/scheduling conference and the byproduct of which will be the scheduling of the trial and in many cases a pre-trial status conference prior to trial. So in order to get the trial on the court’s calendar, the lawsuit must be filed, served and answered. The sooner you get the lawsuit filed and served, you’re one step closer to getting the case resolved.

The overwhelming number of lawsuits filed are settled out of court. In fact, I was attending a mediation recently when the mediator told the parties that he had attended a recent course on mediation that touted the statistic that over 95% of all lawsuits filed are settled out of court without going to trial.

There are several reasons why one should consider filing a lawsuit early in the claims process. But this is an inherently personal decision for your lawyer and you to consider based upon a number of factors as noted above.

BOISE TRIAL LAWYER ALAN L. MORTON HAS OVER 31 YEARS OF EXPERIENCE AS A TRIAL LAWYER.

If you or a loved one have a legal question or are considering pursuing a claim or filing a lawsuit, you should consider consulting with an experienced trial attorney. Boise Trial Lawyer Alan L. Morton has over 31 years of experience in helping others seek justice for their injuries and damages. You can reach Boise Trial Lawyer Alan Morton at 208.344.5555, toll free at 888.816.7021 or by completing an online contact form. Mr. Morton is willing to meet with you in a confidential setting for an initial free consultation. Mr. Morton represents clients in Boise, Ada, Canyon, Elmore, Blaine, Twin Falls, Gem, Payette, Washington, Valley counties; indeed throughout the entire State of Idaho and beyond. He has the compassion, dedication and experience to provide you with assistant in prosecuting your case in a diligent manner. His personal goal is to provide each client with outstanding service.


Alan Morton
Advocate for Justice/Trial Lawyer