I got rear-ended. MUST I go through other driver's insurance to collect for the damages?

[Brian777]

Jurisdiction

California

Two weeks ago I got read-ended by a car making a left-hand turn from an alley onto the street. There were no injuries, and the damage appeared to be less than I was expecting given the force of the impact. But I'll need a new rear bumper + some body work.

I filed a claim with the other driver's insurance, but I'm nervous that they might want to "total" my car if the cost of repairs exceeds (what they feel is) the value of the car. It's my dream car, I just got it 3 months ago, a 2001 BMW 530i (single retired owner's weekend car so low mileage, garage kept, it really is in SUPERB condition, it was a VERY rare find, I shopped for 6 months before finding this car). I have no intention of letting an insurance company take possession of it because I love the car, and have neither time nor inclination to shop for another car.

If it gets a salvage title, that will drastically lower its resale value. I don't have any plans to sell it, but I sure as heck don't want to get stuck with a "salvage vehicle" designation.

So I have two questions:

1) Am I even required to file a claim with his insurance company? In order to avoid a "salvage" title designation, could I withdraw my claim and sue the driver personally in small claims court (or limited civil)? There's no question about what happened, and I have photos & video of the scene. It's clear that he rammed into me from behind. He doesn't deny what happened. And his hood was all smashed up.

2) If I do have to go through his insurance (or if I decide to regardless), and they low-ball and only offer to pay say 75% of the cost of repairs, could I sue the driver in small claims for the remainder? I'm also going to need a rental car for 5 days while the repairs are done, so I'd want to recoup that money as well. Are those costs also paid by an at-fault driver's insurance as part of the damages?

Oh a third question: given that I live in California, which requires cars to pass a smog inspection, could I demand to his insurance that they also pay to have it re-tested? it looks like the muffler got pushed in slightly, and the car had just passed a smog test the day before I bought it. So any damage done to the muffler (or other parts) could cause it to fail when I get it tested again in 1yr 9 months.

 

[Brian777]

P.S.– A pic is attached, I thought it would display but I guess you have to click on it.

 

[Tax Counsel]

1) Am I even required to file a claim with his insurance company? In order to avoid a "salvage" title designation, could I withdraw my claim and sue the driver personally in small claims court (or limited civil)?

You could do that, but understand that the other driver will still have his/her insurance company handle it since the insurance company provides a lawyer to handle the lawsuit for the other driver. In other words, you'll still end up dealing with the insurance company as you are right now.

2) If I do have to go through his insurance (or if I decide to regardless), and they low-ball and only offer to pay say 75% of the cost of repairs, could I sue the driver in small claims for the remainder?

You can reject the insurance company offer and sue. Again, the insurer will provide the lawyer for the other driver in the lawsuit. You'd have to hope that you could win enough more in the lawsuit that it would justify the cost and expense of the lawsuit, as well as the delay in getting paid.

If you settle with the insurance company the terms of the settlement will preclude you from going back and suing for more.

Oh a third question: given that I live in California, which requires cars to pass a smog inspection, could I demand to his insurance that they also pay to have it re-tested?

Sure, you can do that. Whether the insurance company will agree to do it, of course, I cannot tell you.

 

[Zigner]

Two weeks ago I got read-ended by a car making a left-hand turn from an alley onto the street. There were no injuries, and the damage appeared to be less than I was expecting given the force of the impact. But I'll need a new rear bumper + some body work.

I filed a claim with the other driver's insurance, but I'm nervous that they might want to "total" my car if the cost of repairs exceeds (what they feel is) the value of the car. It's my dream car, I just got it 3 months ago, a 2001 BMW 530i (single retired owner's weekend car so low mileage, garage kept, it really is in SUPERB condition, it was a VERY rare find, I shopped for 6 months before finding this car). I have no intention of letting an insurance company take possession of it because I love the car, and have neither time nor inclination to shop for another car.

If it gets a salvage title, that will drastically lower its resale value. I don't have any plans to sell it, but I sure as heck don't want to get stuck with a "salvage vehicle" designation.

So I have two questions:

1) Am I even required to file a claim with his insurance company? In order to avoid a "salvage" title designation, could I withdraw my claim and sue the driver personally in small claims court (or limited civil)? There's no question about what happened, and I have photos & video of the scene. It's clear that he rammed into me from behind. He doesn't deny what happened. And his hood was all smashed up.

2) If I do have to go through his insurance (or if I decide to regardless), and they low-ball and only offer to pay say 75% of the cost of repairs, could I sue the driver in small claims for the remainder? I'm also going to need a rental car for 5 days while the repairs are done, so I'd want to recoup that money as well. Are those costs also paid by an at-fault driver's insurance as part of the damages?

Oh a third question: given that I live in California, which requires cars to pass a smog inspection, could I demand to his insurance that they also pay to have it re-tested? it looks like the muffler got pushed in slightly, and the car had just passed a smog test the day before I bought it. So any damage done to the muffler (or other parts) could cause it to fail when I get it tested again in 1yr 9 months.

Please understand that "sentimental value" does not factor in. You are only entitled to the fair market vehicle at the time of the loss. If the cost to repair the vehicle exceed that amount, then you are not going to get the full amount to repair the damages. Looking at Kelly Blue Book, the best value you can expect is up to $8,000. Have you gotten an estimate for the repairs yet?

There is nothing saying that you can't withdraw your claim if the other driver will agree to compensate you directly, but I seriously doubt that will happen.

 

[adjusterjack]

Am I even required to file a claim with his insurance company? In order to avoid a "salvage" title designation, could I withdraw my claim and sue the driver personally in small claims court (or limited civil)?

Sure. But that won't keep his insurance company out of it. He'll turn the lawsuit over to his insurance company and you'll have the same issue when it comes time to get the money.

If I do have to go through his insurance (or if I decide to regardless), and they low-ball and only offer to pay say 75% of the cost of repairs, could I sue the driver in small claims for the remainder?

You can, but it won't help you. His insurance company will defend on the amount and you'll end up with the same amount you would get without suing.

I'm also going to need a rental car for 5 days while the repairs are done, so I'd want to recoup that money as well. Are those costs also paid by an at-fault driver's insurance as part of the damages?

Yes.

But you'd better discuss that with the claims adjuster as to how much you spend. All you are entitled to is a motorized box on wheels to get you from point A to point B. If you overspend you'll be paying a good chunk of it out of your own pocket. And you won't win the difference in a lawsuit.

Oh a third question: given that I live in California, which requires cars to pass a smog inspection, could I demand to his insurance that they also pay to have it re-tested? it looks like the muffler got pushed in slightly, and the car had just passed a smog test the day before I bought it. So any damage done to the muffler (or other parts) could cause it to fail when I get it tested again in 1yr 9 months.

Talk to the repair shop about that. They may include a retest as part of the repairs.

I have no intention of letting an insurance company take possession of it because I love the car, and have neither time nor inclination to shop for another car.

If it gets a salvage title, that will drastically lower its resale value. I don't have any plans to sell it, but I sure as heck don't want to get stuck with a "salvage vehicle" designation.

You won't have any choice. In the event of a total loss, the insurance company will pay you the ACV and take the car or let you keep the car and deduct the salvage value from the ACV and you will be required to get a salvage title.

 

[zddoodah]

Am I even required to file a claim with his insurance company?

No.

could I withdraw my claim and sue the driver personally in small claims court (or limited civil)?

Yes.

If I do have to go through his insurance (or if I decide to regardless), and they low-ball and only offer to pay say 75% of the cost of repairs, could I sue the driver in small claims for the remainder?

If you accept such an offer, you'll be required to sign a release that would preclude legal action for the balance.

I'm also going to need a rental car for 5 days while the repairs are done, so I'd want to recoup that money as well. Are those costs also paid by an at-fault driver's insurance as part of the damages?

Yes.

given that I live in California, which requires cars to pass a smog inspection, could I demand to his insurance that they also pay to have it re-tested?

You can demand anything you want.

You could do that, but understand that the other driver will still have his/her insurance company handle it since the insurance company provides a lawyer to handle the lawsuit for the other driver. In other words, you'll still end up dealing with the insurance company as you are right now.

This would be true if the suit were filed in the limited civil division of the superior court, but it would not be correct if it were filed in small claims court (and, given how much a 20-year old BMW 530i is worth, it would be absurd to file anywhere other than in small claims court). Lawyers may not represent clients in small claims court in California.

 

[Zigner]

I filed a claim with the other driver's insurance ...

Why you didn't just file with your insurance company and let them deal with the other party?

 

[army judge]

Why you didn't just file with your insurance company and let them deal with the other party?

People that go directly after the at fault driver, rather than through their insurer do so because their deductible is high ($1,000 or more), some have only liability coverage, some fear any report to their insurer will raise their premium, or some have no valid auto insurance.

Perhaps our OP will answer with her/his reason(s).

 

[zddoodah]

Why you didn't just file with your insurance company and let them deal with the other party?

I obviously can't speak for the OP, but most folks don't bother with their own collision coverage (and the deductible that goes along with that) when liability isn't disputed and the other driver is insured. Of course, it's possible that the OP doesn't have collision coverage.

 

[Zigner]

Perhaps our OP will answer with her/his reason(s).

That's what I'm hoping for

 

[Zigner]

I obviously can't speak for the OP, but most folks don't bother with their own collision coverage (and the deductible that goes along with that) when liability isn't disputed and the other driver is insured. Of course, it's possible that the OP doesn't have collision coverage.

I understand - I'm trying to make a point here

 

[flyingron]

People that go directly after the at fault driver, rather than through their insurer do so because their deductible is high ($1,000 or more), .

If the victim's insurer recovers the funds from the at-fault driver, they will return the deductible.

 

[Brian777]

Why you didn't just file with your insurance company and let them deal with the other party?

I only have the minimum coverage necessary, so I'm pretty sure my policy wouldn't cover it. I'll have to double check though, as I did tweak my policy a little about a month ago. Also it's isn't in dispute who was at fault, and I do have concerns that my monthly payment might go up even if I'm not at fault, though it's my understanding that that generally doesn't happen.

 

[Zigner]

I do have concerns that my monthly payment might go up even if I'm not at fault, though it's my understanding that that generally doesn't happen.

It doesn't "generally" happen because it can't happen. If you are in a not-at-fault accident, your rates don't go up.

 

[adjusterjack]

It doesn't "generally" happen because it can't happen. If you are in a not-at-fault accident, your rates don't go up.

Though they could go up for reasons other than the accident, like the company raising everybody's rates.

 

[Zigner]

Though they could go up for reasons other than the accident, like the company raising everybody's rates.

Yes, that's always true.

 

[Brian777]

The accident was a fender-bender (more or less), I was rear-ended. Two weeks ago I took it to a body shop for an estimate, and just got off the phone with the other driver's insurance claim adjuster. I'm absolutely furious! They claimed that *I* was "50% responsible". My questions are 1) what does the law say about who's at fault, and 2) What should my next step be if I completely reject their offer (which I do)?

Here's what happened: I was parallel parking on a residential street next to my building. My car was in reverse, as I was backing in. Perpendicular to the street there's an alley behind the building that leads to the parking lot (which was full). I was turned around looking through my rear window when suddenly this car comes barreling out of the alley making a right-hand turn and SLAMS into me. It was quite hard (no injuries though). I saw him with enough time to slam on my brakes, but not enough time to put it into "drive" and accelerate away.

It's always been my understanding that "you're responsible for what's in front of you", so if you rear-end a car, it's usually your fault....is this correct?

I mean my car was in reverse but parallel parking is a normal activity, and I stopped before he plowed into me. If he'd been paying attention, in my opinion he definitely would have seen me in time to avoid plowing into me.

Anyway, the other driver's insurance rep says they'll only cover 50% of the repair since, as he believes, "You were 50% to blame". I was incensed, rejected his offer flatly, said this definitely isn't over and hung up. And I mean it. I will fight for what I believe is right. The adjuster said "because you were moving at the time of the collision". I said "No I was STOPPED at the time of collision". He said "Well that's not what you told me." I said "That's EXACTLY what I told you. I was parking in reverse and STOPPED when I saw him". He persisted with "Well that's not what you told me". I think he's just trying to bend and twist it to fit what he wants to pay out. Because I was 1000 million% STOPPED at the time of impact. I couldn't believe how confrontational he was, and now trying to change the facts & my report. Trying to blame ME for getting hit from behind?!! What the hell??! (pardon my language but I am pi**ed!!!)

The question is, what does the law say for a scenario like this, as to who's at fault?

Second question is, what do I do? Should I seek to hire a lawyer? The repair estimate is $4300-$5300 or so. The car's max value (they claim) is about $7000. I paid $4250 + taxes & fees. Car is a 2001 BMW 530i in excellent condition. And if I hire a lawyer and prevail, would they have to pay my attorney's fees? And I assume I'd have to pay a retainer up front out of my own pocket?

I want my car 100% fixed and I won't settle for anything less than the other driver and/or his insurance footing the bill. Unless they could prove that somehow I share some responsibility? I mean the guy's hood was all smashed up and bent upward like a tent. The damage to my rear honestly looks a lot less than I was expecting, but it's a solid car which was why I bought it. And it's very clear who hit whom.

Sorry if I'm rambling or if anyone is tired of seeing my posts about this. But his insurance offering only 50% completely changes the game for me. I am furious! Previous post was here:

I got rear-ended. MUST I go through other driver's insurance to collect for the damages?

 

[zddoodah]

My questions are 1) what does the law say about who's at fault

The law doesn't have anything to say about this.

What should my next step be if I completely reject their offer (which I do)?

That depends. Do you have collision coverage? If so, make a claim against your policy. You'll have to pay the deductible, but your insurer will pursue the other driver (via the other driver's insurer) for reimbursement. If your insurer makes a full recovery, it will refund your deductible. If you don't have collision coverage, then file a small claims action.

Should I seek to hire a lawyer?

For a non-injury accident in which the damages are within the limits of small claims court? Absolutely not. Lawyers can't appear in small claims court, and it's unimaginable that you could find a lawyer willing to do this on contingency. You'd pay fees that could be as much as half of your claim, and those fees would not be recoverable in litigation.

 

[Tax Counsel]

My questions are 1) what does the law say about who's at fault,

Fault is determined by a jury (or if no jury) by deciding to what extent each of the parties in the accident were negligent.

2) What should my next step be if I completely reject their offer (which I do)?

See an attorney for an evaluation of your situation to see if you have a good claim to sue and how much you can realistically expect to win from it if you do.

It's always been my understanding that "you're responsible for what's in front of you", so if you rear-end a car, it's usually your fault....is this correct?

The key word here is usually. There are circumstances in which the driver of the leading car would be the negligent party.

Second question is, what do I do? Should I seek to hire a lawyer?

I'd start by consulting one or more lawyers. Most give free initial consultations. Then decide whether to hire one after you hear what they have to say.

And if I hire a lawyer and prevail, would they have to pay my attorney's fees?

No. (Nor do you have to pay the other driver's legal fees if you lose.) Thus, that's one factor you need to take into account in deciding whether to hire a lawyer to represent you in this after consulting one (or a couple) to hear how strong a case you have. Bear in mind that as the plaintiff in the case you bear the burden of proof in the case and you might need one or more expert witness to help make your case, and experts are not cheap.

And I assume I'd have to pay a retainer up front out of my own pocket?

You'd probably have to hire an attorney by the hour for this since the money involved here is just not enough to get an attorney interested in doing it on a contingent fee basis. In any event you would likely need to put up a retainer for at least the lawyer's out of pocket expenses.

I want my car 100% fixed and I won't settle for anything less than the other driver and/or his insurance footing the bill.

Just don't spend so much pursuing that that you end up worse off than the offer the insurer has on the table now.

Bear in mind, too, that you can never predict with certainty how a judge or jury deciding the case just off the evidence in court will come out. They didn't see the accident; they'll only have whatever evidence is presented to make their decision. And while you are certain of your position, you also have a bias in that you are convinced your perspective of the accident is the correct one. It might not be exactly what you thought it was.

 

[adjusterjack]

I only have the minimum coverage necessary, so I'm pretty sure my policy wouldn't cover it. I'll have to double check though, as I did tweak my policy a little about a month ago.

Well, have you checked your policy yet? Is it possible that when you added a $7000 car to your policy that you also added collision coverage? If you do have collision coverage I suggest you use it and stop hassling with the other insurance company as their position isn't likely to change.

The other driver's insurance company is not your insurance company. It's contractual obligation is to defend its insured. The claim rep made you an offer based on his opinion that the details of the accident put you 50% at fault. You don't like the offer. Your next step is to sue the driver in small claims court and convince a judge that you weren't at fault.