by dave18 » Mon Apr 26, 2010 06:13 am
Hello all!
This is my first post, and I just have to say WOW, what a great forum you have here! I really look forward to participating.
I'll try to keep it short, and if you need more info, just ask!
Another driver was at fault when he hit and totaled my car. That's not in dispute. He was not the owner of the car; I believe it was his aunt's car. Since I don't have collision coverage, his aunt's insurance company has been handling the claim. For the property damage portion of the claim, I can't reach an agreement with the insurance company as to what the car is worth. As I understand it, my recourse is small claims court.
I know I am going to sue the owner of the car. The question is, should I sue the driver as well? The only thing I'm worried about is that the driver had an out-of-state driver's license. He gave a local California address to the responding police officers. It is the same address as his aunt's, so I'm not sure if that's his legal address or not. I'm worried that serving this guy could become an issue. Also, since the owner is the one with the insurance coverage, it's really her that I need to get a judgment against.
So, what do you think? Is there any point trying to sue the driver as well? Could not suing him impact my case? I've never had to do anything like this before and the small claims websites are not very definite in this area.
Thanks a lot for any input! And like I said, if you need more info, just ask!
-Dave
This is my first post, and I just have to say WOW, what a great forum you have here! I really look forward to participating.
I'll try to keep it short, and if you need more info, just ask!
Another driver was at fault when he hit and totaled my car. That's not in dispute. He was not the owner of the car; I believe it was his aunt's car. Since I don't have collision coverage, his aunt's insurance company has been handling the claim. For the property damage portion of the claim, I can't reach an agreement with the insurance company as to what the car is worth. As I understand it, my recourse is small claims court.
I know I am going to sue the owner of the car. The question is, should I sue the driver as well? The only thing I'm worried about is that the driver had an out-of-state driver's license. He gave a local California address to the responding police officers. It is the same address as his aunt's, so I'm not sure if that's his legal address or not. I'm worried that serving this guy could become an issue. Also, since the owner is the one with the insurance coverage, it's really her that I need to get a judgment against.
So, what do you think? Is there any point trying to sue the driver as well? Could not suing him impact my case? I've never had to do anything like this before and the small claims websites are not very definite in this area.
Thanks a lot for any input! And like I said, if you need more info, just ask!
-Dave
Posted: Mon Apr 26, 2010 11:00 am Post Subject:
I believe this guy shares the same household as that of his aunt. In that case, he might be listed with his aunt's insurance and thus got her permission to drive it. Under such a scenario, the owner (his aunt) has to share the responsibility of the damage that has been caused to you.
Posted: Mon Apr 26, 2010 12:17 pm Post Subject:
Here in Pa the insurance "follows the car" so the driver would not be liable unless there was gross negligence. You really should research with your state insurance department before you use any "out of pocket" $$ to start a lawsuit. Years ago the system for agreeing on a dispute was that you hired your own adjuster, split the cost of an "umpire"(third adjuster)with the insurance company and they made the final decision on the $$ amount.
Posted: Mon Apr 26, 2010 03:21 pm Post Subject:
Why are you so resolved on suing the Owner of the vehicle? She was complying with the law when she purchased the insurance. It seems like your beef is with her insurance company. No company wants to pay. Its like barganing for melons in the marketplace trying to agree on the value of a vehicle and its skewed towards the Company. I suspect that the value of totaled vehicles is a very common point of contention between companies and claimants. If you feel that suing someone will provide satisfaction you may be disappointed.
Posted: Mon Apr 26, 2010 06:49 pm Post Subject:
Hey everyone, thanks for the replies!
You really should research with your state insurance department before you use any "out of pocket" $$ to start a lawsuit.
That's a good idea. I did talk with them and they told me to consult with my lawyer (I hired a lawyer to handle the personal injury stuff). My lawyer is not getting paid to deal with any of this property damage stuff, but I'll ask him anyhow. ...OK, I just talked with his assistant and she indicated that while the insurance follows the car, I should name both in the lawsuit.
Years ago the system for agreeing on a dispute was that you hired your own adjuster, split the cost of an "umpire"(third adjuster)with the insurance company and they made the final decision on the $$ amount.
Yeah, I was told I could do that but that it might be fairly expensive. Small claims court seems to be the preferred method.
Why are you so resolved on suing the Owner of the vehicle?
Because she is responsible for registering and putting a vehicle on the road that damaged my property. Unless her vehicle was stolen, under state law, that makes her responsible.
It seems like your beef is with her insurance company.
You are right, my beef is with her insurance company. But to get them to pay, I need to get a judgment against her. I know, it sounds convoluted, but I certainly didn't come up with this system!
If you feel that suing someone will provide satisfaction you may be disappointed.
Yeah, I may be. But what alternative do I have? If I just cash the insurance company's check, then I'll be disappointed as well.
Thanks for the input everyone! So it looks like I need to name both parties in this lawsuit. Sigh. I sure hope the out-of-state driver doesn't become a problem when it comes to service. Oh well, there's only one way to find out... :)
-Dave
Posted: Mon Apr 26, 2010 07:41 pm Post Subject:
Suing both the driver and the insured/owner is a proper course. If found responsible, either or both could be held liable for your damages ("joint and several liability") -- judge could order each to pay 1/2 of the total award. Doesn't mean you will collect from both, but if one refuses to pay their share, you can enforce the entire judgment on the other person.
Many people err by attempting to sue the insurer. It's doubtful that the insurer ever needs to be named as a party to a small claims suit, and they would probably appear to ask to be removed.
The insurance contract exists between the vehicle owner and the insurer. The insurer is not a "party" to the original tort -- the collision -- and thus, no cause of action exists against them. That they denied the claim, simply puts the matter back between the parties to the collision. State laws vary as to primacy of a policy on the vehicle or on the driver.
In California, many companies reduce the property damage limits to the state minimum ($5000) when an unnamed, authorized driver causes a collision. In such an event, the driver's personal auto policy, if they have one, would cover the claim less the $5000 in coverage on the vehicle. If the vehicle has been stolen, is used by a driver excluded by name, or used without the owner's permission, no coverage applies from the policy on the vehicle, and only the driver's personal auto policy would pay the claim.
It may be possible, under certain circumstances, to collect from the personal liability portion of a homeowner's policy covering a party to the collision if auto insurance coverage is not in effect or does not cover the loss.
Posted: Mon Apr 26, 2010 08:46 pm Post Subject:
Thanks for your answer, MaxHerr!
judge could order each to pay 1/2 of the total award. Doesn't mean you will collect from both, but if one refuses to pay their share, you can enforce the entire judgment on the other person.
So let's say I did get a 50-50 judgment against the owner and the driver. The insurance company pays for the owner's half, and then if I ended up having to enforce the entire judgment on the owner if the driver didn't pay, would the insurance company pay for that half as well?
Thanks again!
-Dave
Posted: Tue Feb 15, 2011 12:25 am Post Subject:
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