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

Discussion in 'Auto Accidents, Injuries' started by Brian777, Jul 16, 2021.

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  1. Zigner

    Zigner Well-Known Member

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    Based on the OP's description, I have to wonder if he's going to be able to show that he wasn't pulling out of the spot in to traffic...
     
  2. Brian777

    Brian777 Law Topic Starter Member

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    I checked, I don't have collision coverage.
    Another user suggested that if I sue the driver, his insurance would handle the case–is that true (if the case were filed in limited civil as opposed to small claims)? I'm debating whether to file in small claims or limited civil, because as I understand it, you can't appeal a small claims verdict. I don't like the idea of having only "one shot".
     
  3. Brian777

    Brian777 Law Topic Starter Member

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    Something else just occurred to me: the estimate I got is for the bare minimum of possible damages. But the shop won't know if there's more extensive damage until they remove the bumper & look at the internal components. It's also possible that the muffler was damaged, which could make it fail the next smog test. So the damages COULD potentially be a lot more than the estimate.

    So my question is, if I sue the driver, do I have to sue for a specific dollar amount? What if I sued for the amount of the estimate and prevailed, but then found out the damage is more extensive and the car requires additional repairs? How would I collect the additional money?
     
  4. Zigner

    Zigner Well-Known Member

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    The cost to litigate this in a higher court would exceed anything you'll recover.
    If you sue now and there are additional damages later, you're out of luck. You only get one bite at the apple.
     
    Brian777 likes this.
  5. Tax Counsel

    Tax Counsel Well-Known Member

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    Yes, his insurance company is contractually obligated to defend him, and would provide the lawyer for him if the case is litigated outside small claims court. While the other driver cannot have a lawyer represent him in small claims court, if the defendant loses the insurance company might tell him to appeal and then provide a lawyer for the appeal.

    Two points on this. First, in California it is true that the plaintiff (you) cannot appeal a small claims decision, but the defendant (driver) can. If the defendant appeals, that results in simply a new trial in the higher court.

    If you litigate in a court other than small claims court, you and the defendant both may appeal the decision. But those appeals are not a new trial. Those appeals are focused on challenges to rulings that the judge made during the case. You don't get to introduce evidence in those appeals and the appeals court will not second guess the factual findings of the judge or jury. If you win on that appeal, the result might be a new trial where the error(s) in the first trial are corrected. It would matter what the appeal was about and the remedy the appeals court set to fix it. Appeals cost thousands of dollars if you hire a lawyer for them. If you do the appeal yourself you're much less likely to succeed. There is very definite art to this. And you'd be going up against the insurance company lawyer.
     
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  6. adjusterjack

    adjusterjack Super Moderator

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    The solution to that is simple. Have your car repaired. Pay for the repairs. Sue for the exact cost of repairs.
     
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  7. zddoodah

    zddoodah Well-Known Member

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    If you sue in small claims court, there is nothing that the insurer can do because attorneys are not allowed in small claims cases (technically, the insurer could hire an attorney to coach the defendant behind the scenes, but I doubt any insurer would do that in such a small dollar case). If you sue in the limited (or unlimited) division of the superior court, the insurer will retain an attorney to represent the other party. However, there are statutory disincentives to filing a case in the (un)limited division that could be filed in small claims court. I'm also pretty sure I explained in one of your threads that any attorney fees you incur will not be recoverable.

    The plaintiff has no right to appeal an adverse small claims judgment, but the defendant does. If the defendant loses, it is possible that the insurer will appeal, which will result in a do-over in which an attorney could represent the defendant (and you).

    Yes. You also, obviously, need to prove your damages to get a judgment. You can't get a judgment for "$X and whatever other damages might be uncovered once they pull off the bumper." Nor can you sue a second time.
     
  8. adjusterjack

    adjusterjack Super Moderator

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    I'm not sure I agree with that. The insurance company has a contractual duty to defend its insured. There may be no choice but to hire an attorney to coach the insured.
     
  9. Brian777

    Brian777 Law Topic Starter Member

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    Well dang. That kinda makes it difficult to know how much to seek. I'd have to err on the higher side then, using the highest estimates.
     
  10. Brian777

    Brian777 Law Topic Starter Member

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    Yes you did explain in a previous response, I recall that.
    So if I sued the driver in small claims, and prevailed, would the burden of payment be exclusively on him, the driver? The insurance company would be out of the picture and not responsible for any portion of the payment? Or how would that work exactly? Or could I sue BOTH driver & insurance in small claims?
     
  11. Brian777

    Brian777 Law Topic Starter Member

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    Well if I'd been pulling out he wouldn't have been able to rear-end me, I think the damage on that case would be to the front side of my car. But I have photos & a video of the scene immediately after, showing the damage to both cars and the positions of each car, as well as the intersection from which the driver turned. Video also shows the distance he traveled until impact, which was several car lengths. I can also use aerial photos from Google Maps. Together with my video that should give a pretty clear picture. Getting a dash cam is now a top priority though.
     
  12. Brian777

    Brian777 Law Topic Starter Member

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    *in that case
     
  13. Tax Counsel

    Tax Counsel Well-Known Member

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    I don't think so. Since the defendant can appeal and a get a trial de novo after a loss in small claims court there would be little need to bother doing much coaching for small claims court. The insurance company could just handle the new trial if the insured lost the small claims action.
     
  14. Zigner

    Zigner Well-Known Member

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    You wouldn't sue the insurance company because they didn't crash in to you.

    If you win in small claims, and if no appeal is filed, then the insurance company would be obligated to pay the money due.
     
  15. zddoodah

    zddoodah Well-Known Member

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    If you sue and win, the judgment will only be against the driver. You can seek to enforce the judgment by any of the means set forth in the Code of Civil Procedure. The insurer would have a contractual duty to the insured, not to you, to pay the judgment. There is a mechanism for converting the judgment against the insured into a judgment against the insurer, but it wouldn't be worth it for such a small dispute (and the insurer would pay before it got beyond the initial filing stage).
     
  16. Brian777

    Brian777 Law Topic Starter Member

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    Ok so I just got a check in the mail from the other driver's insurance (who rear-ended me). They're claiming that their client was only 50% responsible. The repair estimate I got is for $6700 (not including a rental car). THEIR (recommended) auto shop's estimate was less than $4300; I spoke with that shop, and they even told me that's not the full estimate, and it would definitely go up from there, but they deal with AAA insurance a lot so that's how their process works, they write only partial estimates at the beginning – presumably so AAA can then make low-ball offers, like they did with me.

    My question is, if I were to cash the check, would that preclude me from being able to sue the driver for the remainder? Would cashing the check (a paltry $2100) be legally tantamount to accepting it as a final settlement, or would I still have the option to sue for the rest?
     
  17. Tax Counsel

    Tax Counsel Well-Known Member

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    I'd bet that somewhere in the mailing with that check or on the check itself the insurance company tells you that the payment is in full settlement of the claim, which would prevent you from suing for more. I'd check that very carefully before cashing that check.
     
  18. Brian777

    Brian777 Law Topic Starter Member

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    I've examined the check & the letter that came with it, and can find no such wording is on the check itself. And the letter only says "The statute of limitations on your claim expires on ____. It's your responsibility to either settle this claim before that date or file a lawsuit before the statute expires..."
     
  19. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    If you cash that check without first talking to a lawyer you are insane.
     
  20. Brian777

    Brian777 Law Topic Starter Member

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    I'm about to start preparing my Complaint. Should I include Exhibits with the Complaint at the time of filing, or wait to present them at trial? Or is either acceptable? If so, is one more advantageous? Evidence mainly photos of the street showing the other driver's perspective (his view of the street as he made a left-hand turn into me), and of course the crash photos.
     

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