What Happens to a Personal Injury Lawsuit if the Plaintiff Files for Bankruptcy?

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There is always a risk in personal injury lawsuits that a defendant may file for bankruptcy protection. If successful, a bankruptcy can effectively discharge the defendant from any obligation to pay a monetary judgment owed to the plaintiff. But what about the reverse situation? What happens if the plaintiff files for bankruptcy before the personal injury lawsuit is resolved?

Courtland Properties I, LLC v. Collins

A recent decision from the Georgia Court of Appeals, Courtland Properties I, LLC v. Collins, helps to explain how the law works in this situation. In this case, a man was injured in a slip-and-fall accident at his apartment complex. He subsequently filed a personal injury lawsuit against the apartment’s owner, alleging its negligence in maintaining the property caused the accident.

While the plaintiff’s lawsuit was pending, he filed for Chapter 7 bankruptcy protection. This prompted the defendant to file a motion for summary judgment in the personal injury case. Basically, the defense argued that once the plaintiff filed for bankruptcy, he was no longer the “real party in interest” in the case. Rather, the trustee appointed by the bankruptcy court to oversee the plaintiff’s Chapter 7 case was now the real party in interest.

To provide some additional background on what this means, when you file for Chapter 7 bankruptcy protection, a federal court appoints a trustee to take possession of your “bankruptcy estate.” This includes any property that is not expressly exempt from creditor claims under Georgia law. Now, Georgia does exempt personal injury judgments of up to $10,000, but this is often a fraction of what most such claims are actually worth.

In any event, federal law expressly assigns the right to pursue a Chapter 7 debtor’s personal injury lawsuit to the trustee. As the Court of Appeals explained in this case, since the plaintiff’s lawsuit was pending when he filed for bankruptcy, his personal injury claim “became property of the bankruptcy estate and the bankruptcy trustee became the real party in interest with standing to prosecute the claim.” In other words, it was now up to the trustee to decide how to proceed with the personal injury lawsuit, including whether to settle with the defendant or take the case to trial.

That said, the Court of Appeals said summary judgment for the defense was not appropriate at this stage of the litigation. Instead, the Court said the plaintiff should have the “reasonable opportunity” to “join” or “substitute” the bankruptcy trustee as the real party with the trial court. The trustee will also need the approval of the bankruptcy court to take certain actions with respect to the personal injury lawsuit.

As noted above, Georgia law does exempt up to $10,000 of money obtained in a personal injury lawsuit from bankruptcy. What this means is that any personal injury award beyond that amount is considered part of the bankruptcy estate. The trustee will use this money to pay off the plaintiff’s creditors in accordance with federal bankruptcy law.

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Frequently Asked Questions

Here are some of the most common questions people ask us about personal injury. We’re happy to answer your questions at your personalized consultation.
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Can any attorney handle a personal injury case?

Any attorney that is licensed in the jurisdiction where your case is can represent you. But a personal injury attorney has specialized experience and resources. They understand how a personal injury claim can be complex, and they can identify issues that are the most important to your case. At The Persons Firm, our entire practice is devoted to the needs of personal injury victims.

How long do I have to file a personal injury claim?

Most Georgia personal injury claims must be filed within two years of the accident. When a claim involves the government, the deadline is much shorter. You should never wait to contact a lawyer to start preparing your case.

How do you start a personal injury case?

You start a personal injury case by determining the grounds for compensation and who may be responsible to pay. Then, you prepare a summons and complaint, file it in the court with jurisdiction, and serve each defendant. Sometimes, you can negotiate a settlement directly with the insurance company. But direct negotiations don’t count as formally starting a personal injury case. While you negotiate, the deadline to start the case still applies.

What is a personal injury consultation?

A personal injury consultation is a conversation with a lawyer about your case. The consultation may cover whether you have a claim for personal injury compensation, what your claim may be worth and the strengths and weaknesses of the case. You will talk about how legal representation works. You’ll meet the legal team that would handle your case if you hire them.

What kind of lawyer do I need to sue for an injury?

A lawyer who handles injury lawsuits is a personal injury lawyer. You choose and hire the lawyer yourself. They represent your interests and file a legal claim on your behalf.

Do I have a good personal injury case?

To have a good personal injury case, you must have evidence to prove that someone else is legally at fault for causing your injuries. Usually, this is based on negligence, or their failure to exercise reasonable care and caution in a situation. It may also be based on recklessness or intentional harm. In addition, you must show what damages you have and what compensation you should receive.

How much compensation can I get for an injury case?

In Georgia, each case for personal injury compensation is valued individually. It depends on the defendant’s degree of fault and what damages you have. Damages may include economic and non-economic harm. Non-economic harm means pain and suffering, emotional anguish, disability and other intangible losses.

Will I have to testify in court for my personal injury case?

We understand the thought of going to court can cause anxiety. Most personal injury cases don’t require the victim to testify in court. As your lawyers, we’ll work to understand your goals. If called to testify, we’ll prepare with you and represent you in court. With our team of personal injury lawyers, you’ll always be supported and prepared.

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