by sarabelle123 » Thu May 13, 2010 09:35 pm
i was in a 3 car accident a month ago in california. I was at the front of the line and didn't hit anyone and am not at fault. The person behind me's insurance company and the woman who hit him's insurance company are both arguing over who is at fault, but they have both denied fault to me.
I've been handling the claim myself because i found out after the accident that my insurance had lapsed.
They have a court case between the two insurance companies in about a month. But i was told that i may not be compensated even after the decision unless i actually file a claim.
This makes no sense to me. I don't care which one is at fault, all i know is that the fault is not mine. All i want is my car repaired!! Help!
I've been handling the claim myself because i found out after the accident that my insurance had lapsed.
They have a court case between the two insurance companies in about a month. But i was told that i may not be compensated even after the decision unless i actually file a claim.
This makes no sense to me. I don't care which one is at fault, all i know is that the fault is not mine. All i want is my car repaired!! Help!
Posted: Fri May 14, 2010 01:59 am Post Subject:
I've been handling the claim myself because i found out after the accident that my insurance had lapsed.
This is technically known as an "OOPS".
They have a court case between the two insurance companies in about a month. But i was told that i may not be compensated even after the decision unless i actually file a claim.
Have you even filed a claim with the insurance companies of either of the other two parties? That's your starting point. But it seems to me that this has progressed to court much too quickly, if indeed it has.
But if it is calendared for a hearing, you need to protect your interest and jump into the dogpile. It will cost you about $350 to file a complaint, plus the cost of third-party service on the two other parties.
I don't care which one is at fault, all i know is that the fault is not mine. All i want is my car repaired!! Help!
I can certainly appreciate your dilemma. Being struck from behind is normally a "dead bang winner" or "slam dunk" depending on which analogy you prefer. But in order to collect you have to file a claim. If you haven't done that, what are you waiting for?
Primary responsibility in a rear-ender normally falls on the party who actually hit your vehicle ("following too close"), but if caused by the negligence of a third party, it could be their responsibility, or divided between the two. You should easily be able to collect for your damages, insurance or not.
What you cannot collect under California law, because your insurance had lapsed (did you reinstate or are you still uninsured, in violation of state law?), is damages for "pain and suffering". Can only try for that if you have your own insurance in force at the time of the collision. [/quote]
Posted: Fri May 14, 2010 02:02 am Post Subject:
But i was told that i may not be compensated even after the decision unless i actually file a claim.
I think you mean lawsuit... not claim. If if one carrier losses that decision is not binding between them and you. You are a separate matter. Granted, the party that looses should probably just pay your claim as it's likely that they would again lose if your filed suit but they are correct in that they would not be required to pay your claim based on the decision between those two carriers.If I recall correctly, CA is a no-pay no play state. This means if you don't pay for required insurance then you cannot collect for non-economic loses you may have. This means that you can only collect for your actual loss, nothing else. Since you were not paying for any 1st party coverage this also means you will need to address this yourself, as you mentioned.
It appears in CA joint and several only applies to non-economic losses. This means each party is only responsible to pay for the amount that negligence applies to them. You can only collect from the each party for the amount of their negligence in causing your loss.
Our court system does not automatically make someone at fault... no matter how obvious it it. You still need to prove that a certain person was at fault and how much. Granted, putting up two people with both of them needing to add up to 100% liable should be easier to prove... you still need to prove it. Each party will provide their own defense as to why they are not at fault. It's then up to a judge or jury to decide. But the problem is... you may need to file suit to get this verdict. You'd also need to foot the bill for this expense and being able to only collect for your economic loss, I don't think you are going to find an attorney to take your case unless you are going to pay the attorney directly.
Your other option is small claims court, which I'd recommend. But keep in mind, you still need to prove that one or both parties are liable, adding up to 100% recovery. You may only need to show that both people were involved and that you sustained a loss. The judge _might_ then determine the amount each party owes. But the judge might also state that you've not proved anything against either party. I think you very may well have a slam dunk case as in small claims court, the judge can use a lot of discretion to give weight to the common person.
Posted: Fri May 14, 2010 02:39 am Post Subject:
It appears in CA joint and several only applies to non-economic losses. This means each party is only responsible to pay for the amount that negligence applies to them. You can only collect from the each party for the amount of their negligence in causing your loss.
Yep!
If the damage to your vehicle is $7500 or less, it is a matter for small claims court -- no attorneys, just the parties who might be at fault. [I was about to modify my response above, when tcope jumped in, preventing me from doing that.]
Your "cause of action" is separate from those of the other two parties against each other. So whatever happens to them in court, it has no direct implication for your claim. As tcope has said, you have to prove your damages separate from anyone else, and the court will assign fault, if it finds that you are not 100% at fault.
Long before you file in small claims court, you are required to "demand payment" from the party(ies) you are attempting to sue. So in your case, you file claims with both insurance companies first, and wait to see what happens.
You might be surprised when the insurer of the party that hit your car offers to pay to fix your car. You might not be surprised when they wonder why it took you a month to file your claim. Did it take you that long to "enhance" the damage to try to get more money from the insurance companies? (Not saying you did anything criminal like that, but others have tried. Some are now in prison.)
In civil court, California law requires that fault be assigned on a "comparative negligence" basis. If you are determined to be 10% at fault, for example, you would not be awarded 10% of your damage claim. The other 90% could be assigned to one party, or divided between the two. It's the judge's call in small claims court, not necessarily the insurance company's claims department when you file a claim with them. You just have to show up and state your case, and answer the judge's questions.
Just like "People's Court" or "Judge Judy" on TV. You have to have repair estimates detailing the damage and the cost to repair. You can't just say, "Well, I think it will cost $XXX to fix it." There is no cost to get repair estimates from 3 or 4 body shops.
It will cost you about $75-$100 to file your small claims case (file in the jurisdiction where the accident happened so you don't have to file two cases in different courts based on where the other drivers live) plus the cost to serve the defendants. You file against the drivers, not their insurance companies.
If you're not familiar with the process, all of the courts in California have "small claims advocates" available at no cost to help guide you through the process. They don't necessarily give you legal advice, but they show you how to fill out the forms, file the complaint, have service performed, and make sure you know what documents you will need to bring to court.
It also helps to calm your nerves to sit in on the small claims court in which your case will be heard a week or two in advance. You'll see how things work, what kind of person the judge is, how he/she reacts when people don't listen or have their paperwork in hand, whether they have a sense of humor or are an arrogant, pompous ass in a black robe (a few are).
It's also pretty entertaining on most days . . . to watch the kinds of cases that come before the court. Like a lady I once saw who bought a purse five years earlier and was suing because the strap broke. "Your purse is five years old, don't you think it's kind of old and something like that might be expected to happen?" the judge asked. "Oh no, judge," she replied, "it broke the week after I bought it." "And you're just now coming to court?" "Yes. I didn't have the money until now."
Case dismissed. "You waited three years too long."
Posted: Fri May 14, 2010 04:03 pm Post Subject: Thanks
Thanks for all the advice everyone. I actually filed claims with both companies. First with the person who started the pile up, and her company refused liability. They told me to file with the middle guy. So i did that also and was told yesterday that they are also denying liability. That's why the 2 are going to court together.
So what i'm getting from everyone is that i need to file my own lawsuit. (any expenses willbe paid by me, right?) and i can do it in small claims as long as my car damage is under $7500.
Does that seem to sum it up? Thanks so much everyone.
I'll let you know how things go. =) Wish me luck! I wish this was simpler, i really want nothing more than my car repaired. lol. oh well.
Posted: Fri May 14, 2010 04:07 pm Post Subject: one more question!
Sorry i know i should have got this by now.
But if i do file a small claim case, i file with BOTH drivers? Do you think i should do this now or should i wait to see the judge's decision on their own case and then take that person to court.
My car is driveable, so i don't mind waiting, i just want to make sure i'm doing the right thing. Personally i believe it was the fault of the first woman...but i doubt it matters what i believe. =)
Posted: Fri May 14, 2010 07:53 pm Post Subject:
Yes. When you file a small claims case (it's an abbreviate form of civil suit), you name every party that could conceivably be responsible for the "tort" -- the civil equivalent of a criminal offense -- a negligent act that caused damage to your property.
So no matter how the dispute plays out between those two parties in their own civil case, you name both drivers, but not the insurance companies. The insurance companies were not directly involved in the collision, they just provide the liability coverage to those who were.
Here in California, you have the choice of filing the action in the jurisdiction where a party resides or where the tort occurred. If the two parties you intend to sue do not live in the same jurisdiction, to prevent having to file two suits, each of which you could lose by not naming both "defendants", you file a single suit in the court that is responsible for the location where the accident occurred.
If I were you, I would name the driver of the car at the end of the line as Defendant #1, and the driver who hit your car as Defendant #2. It will help clarify the order of collisions for the judge, and may help your case along the way. No guarantees. That the two other parties are going to court could also be in your favor. If another judge finds one party 100% at fault, your small claims judge cannot overlook that (no such thing as nolo contendere in civil court -- a party is either responsible or not -- % at fault is a secondary issue). So there's some advantage to you in this. If your know when they are supposed to be in court, you might just want to go and see what happens.
As I said before, in a three vehicle collision like yours, unless you were clearly at fault to begin with -- which does not seem to be the case, since no one is suing you, right? -- the guy who's last in line, the one who caused the first of two collisions, is most likely going to be the primary at fault party.
But the driver of the car that smacked you could be found partly responsible for your damages, too. If he had been farther back, it might not have happened. If that's the way the judge sees it, he could award 100% of your damages, divided 60% to the first driver, and 40% the the second ( or any other split that adds up to 100%).
In addition to filing your small claims case, I would strongly urge you to file a consumer complaint with the CA Dept of Insurance. You can call (800) 927-HELP or visit the website, www.insurance.ca.gov to find out how to do that.
Posted: Fri May 14, 2010 08:06 pm Post Subject: comsumer complaint
What/who would i be filing a consumer complaint against? and why?
i'm not sure what that is about, i've never heard it before.
Posted: Fri May 14, 2010 08:09 pm Post Subject:
Also if i'm filing against the 2 drivers, does that mean that if i win, one or both of them will be responsible for paying for my car personally? or will their insurance cover them?
i feel bad if they would personally have to pay because their insurance is being unreasonable....but i guess that's not my problem. ugh...
Posted: Fri May 14, 2010 08:23 pm Post Subject:
i feel bad if they would personally have to pay because their insurance is being unreasonable....but i guess that's not my problem. ugh...
Want to know why a lot of people never file small claims suits? Reread what you wrote above.
Apparently no one "feels bad" about your loss, otherwise they would have fixed your car by now. So don't wimp out and start feeling bad for anyone involved!
Yes, if you go to court and win, their insurance companies will pay the awards -- that's what we all (well, not you on the day of the accident) carry insurance for. Protection against the financial effects of what we do wrong/badly or don't do that we're supposed to do.
Be a tiger not a kitten!
Posted: Fri May 14, 2010 08:34 pm Post Subject:
ok i will. thanks Max for everything.
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