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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. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    Yet above you wrote, "Most insurance companies can break laws in the various states..."

    One bad experience doesn't mean "most" do anything.
     
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  2. Redemptionman

    Redemptionman Active Member

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    Okay however, you frame it. Screw me one time shame on you, screw me the second time shame on me for sticking with you.

    Same difference, there are carriers out there I will not do business with just as I assume you are with a carrier that you like? You are right though most won't do anything as they don't care about you, your insurance or even that you are a customer. A good agent can help too, in that it is sometimes good to have a cheerleader for your claim or what it is you want.

    Most insurance companies especially low priced carriers are only out there to protect their own interests. If you don't believe that then file claim with substantial damage and watch what happens.
     
  3. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    I never said anything like that.
     
  4. Redemptionman

    Redemptionman Active Member

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    Misunderstood what you meant then, my bad.
     
  5. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    I'd love to know how you got that from what I wrote.
     
  6. Redemptionman

    Redemptionman Active Member

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    Not sure really, I wouldn't worry about it. The OP is finding out first hand how most insurance carriers roll.
     
  7. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    There you go again. Even if the OP is having a problem with one insurance company that doesn't qualify and MOST.
     
  8. Redemptionman

    Redemptionman Active Member

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    What is you hold up on the MOST part?

    I would say if you see their commercials on TV then you can bet they are pretty terrible.
     
  9. adjusterjack

    adjusterjack Super Moderator

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    That's an incredibly stupid remark.

    I have had bad experiences with contractors yet I still do business with them only I have learned to take appropriate precautions to avoid bad experiences.

    I have had bad experiences with realtors yet I still do business with them only I have learned to take appropriate precautions to avoid bad experiences.

    I have had bad experiences with car dealers yet I still do business with them only I have learned to take appropriate precautions to avoid bad experiences.

    And, yes, I have had bad experiences with insurance companies yet I still do business with them only I have learned to take appropriate precautions to avoid bad experiences.

    By the way, RMan, what is it that you do for a living? I would like to opportunity to cast aspersions on your business.
     
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  10. Redemptionman

    Redemptionman Active Member

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    Too many choices out there to do business with a bad company, too many options.

    and @adjusterjack, I do not know what company you work for nor do I care. You can not keep all customers happy and I understand that. That is not the question but I would pay MORE to do business with people that will take care of me and my family. Who I choose to do business with is up to me and honestly none of anyone's business.
     
  11. adjusterjack

    adjusterjack Super Moderator

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    That's right. Both drivers are telling a story that's biased and self-serving. Without unbiased witnesses the judge will have to decide which story is more credible than the other. There's no way to predict or speculate on how that turns out.

    I think we've helped you all we can here. Time to close the thread.
     
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  12. Brian777

    Brian777 Law Topic Starter Member

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    This is a follow-up to original previous post.

    I'm drafting a complaint outlining the facts for small claims court. I was rear-ended and the other driver's insurance offered a paltry payment, less than 1/3rd the cost of damages. I'm trying to keep it concise, so not sure if I should include EVERYTHING that happened after the accident, i.e. the insurance company's offer, or not.

    I tend to be highly detailed but don't want to give the judge too much to read. On the other hand, I DO want to outline my case in writing first, and then will reiterate, reinforce and fill in additional details at the actual trial.

    Also the defendant (who slammed into my car from behind while making an unlawful left-hand turn) is 72 years old. Can/should I cite his age as a possible factor in the accident, eg his eyesight might be bad, or his reflexes too slow? Or would this be seen by the court as an unnecessary vicious personal attack, and should I therefore not mention it?

    And there's something else that I've been debating. Wondering if I should even file in small claims, or civil limited instead? The amount I'm seeking is just over $10k, so I can bring it down to a flat $10k to qualify for small claims, or keep it over $10k for civil limited.

    I'm debating because I'm uneasy about not being able to appeal in the event that I don't prevail. I mean *I* believe I have a solid case with evidence to prove it (video post-accident showing positions of cars, aerial map of the streets, and the DMV's guide on Rules of the Road which outlines the right-of-way in various scenarios. etc. So I believe that everything I present will support my case, but I don't want to just assume that I'll win. And if I didn't, I'd want to be able to appeal, but apparently plaintiffs can't appeal a small claims case -- or is there ANY way to appeal an unfavorable sm claims verdict?

    I've been to court a handful of times, have prevailed some and lost some. One judge in particular I feel was a real jerk, just his arrogance and demeanor. I definitely did not feel "heard". Another time (I was sued in sm claims) the judge was pretty arrogant/full of ego, but he did rule in my favor.

    In any event I'd want to be able to appeal ad nauseum in the even I'm not successful the first time. And that leads me to my next question...

    What happens if I get a judge who has no experience trying cases of auto accidents or traffic law? He might not see how obvious it is that the defendant didn't follow the traffic laws? Or what if he disregards that, as a previous judge disregarded the law when he decided against my Stay of Execution a couple years ago?

    I thought the law was supposed to be fair but I've come across all types, from law office staff to judges, who were so authoritarian that it really left me wondering how they even got to be in their positions or why they were there.

    Anyway I intend to give this my absolute best shot and will leave no stone unturned in going about it. But it seems that if I file in civil limited, that's a whole different "ball game" than small claims.
     
  13. army judge

    army judge Super Moderator

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    Even IF your lawsuit is 100% perfected, before you file any lawsuit ask yourself if the defendant has sufficient resources from which you can collect your judgment, ASSUMING you would prevail in the matter?

    If your defendant is a deadbeat, living under an Interstate overpass, you'll never see one red cent of your judgment.

    Your frustration is the result of NOT carrying the appropriate insurance options to cover all eventualities and occurrences.

    Had you had collision, uninsured, underinsured, and comprehensive insurance on your vehicle, your insurer would have already arranged for and paid for the repairs to your vehicle.

    You are in the position today because of your choices of yesterday!

    One final thought on what could happen even IF you prevail, Don Quixote.

    If your lawsuit is successful and you receive a judgment for $XX,XXX.

    Your defendant MIGHT just disappear, or even worse for you, file a Chapter 7 bankruptcy!

    After all your earnest efforts, you'll never collect a dime of your judgment, because the judgment was discharged as a result of the bankruptcy action.

    The moral of the story is known by lawyers all across the world, even one's best efforts can (and often are) thwarted by events outside of one's control!
     
  14. Zigner

    Zigner Well-Known Member

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    Your questions have been answers (mostly) in the previous responses. I will point out that you will do nothing to help yourself by denigrating the other party in your filing.

    I'm curious - did you come up with any actual evidence of what occurred?
     
  15. Tax Counsel

    Tax Counsel Well-Known Member

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    No, the insurance company offers are not relevant and not admissible. The focus of the complaint needs to the FACTS regarding what explains why the defendant owes you $X, which in this instance means the facts regarding the accident and the damages you suffered from it. It is what happened in the accident that is the most important thing here.

    Note that small claims court complaints don't have to be novels. Keep the complaint fairly short and to the point, though include the essential information about the accident. You just need to let the judge and defendant know what the case is about and why you think the defendant owes you the money you claim is owed.


    No. Don't include that kind of speculation in the complaint. Again, the focus of the complaint need to the FACTS of what happened. Don't speculate on why the defendant did what he did. It doesn't much matter and risks coming across as an attack on his age, which won't serve you well, especially if the judge you get is also older. I'd not mention the defendant's age in the complaint at all. And leave all speculation out. Just focus on the facts you know.

    Discuss that with a lawyer. The procedural complexity goes up quite a bit when you get out of small claims court, and you may find you need a lawyer to succeed in litigating that for you. The legal fees you pay will make that choice a losing one unless the lawyer can get significantly more for you than the $10K you can get in small claims.

    This makes it even more important to have a lawyer litigate the case if you think you want to do limited civil and then appeal. Appeals are very technical as they focus on the errors the judge makes during the trial; they are not a do over of the trial and the appeals court doesn't second guess the factual determinations of the fact finder (judge or jury as the case may be). So at trial you have to do your best to persuade the fact finder of the facts favorable to you and also know how/when to make proper objections and otherwise preserve matters in the record so that you can make an appeal later if you need to. Having a lawyer for all that will get costly. Not having a lawyer means you significantly increase your chances of mistakes that can hurt you.

    But do you know what it takes to get each of those things admitted into evidence in a civil trial outside of small claims court? There are specific things you have to do to get that admitted. And do you know what all is admissible? For example, the DMV guide on the rules of the road would not be admissible. You want to argue that the defendant violated the rules of the road, you cite the actual statutes that provide the rules of the road, not a summary by the DMV.

    Bear in mind that outside of small claims court you'll be facing the insurance company lawyers, who will know these rules and will use any misstep you make against you.


    If you go to small claims in CA as a plaintiff and lose, you are done. There is no appeal for you.

    Any civil trial judge ought to be able to try a traffic accident case. Tort law (which is the area of law that includes negligence claims like this) is something that all lawyers learn in law school and if the judge has been trying civil cases for any length of time at all he or she has heard tort cases. In any case, you cannot base an appeal on the idea that you think the judge lacked enough experience in the subject matter. As the plaintiff it is your job to explain to the fact finder (again, that may be jury if you are outside small claims) what the facts of the case were and to argue to the judge what law applies that favors you.

    You are right. It's like going from little league to major league baseball. Is the little bit extra that you might get from going outside small claims court going to be worth all the extra time and expense it will involve? How much more in damages do you think you could realistically get?
     
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  16. Zigner

    Zigner Well-Known Member

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    Why do you think you can get >$10,000 on a car that's worth (approx) $8k? What do YOU believe the actual value of your car is, and why?
     
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  17. adjusterjack

    adjusterjack Super Moderator

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    Seriously?

    Here's what you wrote earlier.

    California's total loss threshold is Cost of Repairs - Salvage Value. If the result is less than the car's Actual Cash Value you are entitled to the cost of repairs.

    Using an ACV of $7000 and a 10% salvage value of $700 and a repair cost of $5300 the result is:

    $5300 - $700 = $4600.

    $4600 is less than the ACV so you'd be entitled to the repair cost of $5300.

    $5300 if you can convince a judge that the other driver is 100% at fault, which is the first thing you have to prove before you address the repair cost.

    Where are you getting $10,000 from? Oh wait. Earlier you wrote this:

    If you are hoping to get some personal injury money out of that, it's not going to happen unless you can show that you paid a shrink for ongoing treatment of the toll on your mental health. If you say all that in court without documentation of treatment it will be treated as BS.
     
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  18. Brian777

    Brian777 Law Topic Starter Member

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    1) The first estimate was only a partial estimate, as I discovered only after speaking with the shop personnel. It turns out that they are a contracted repair shop for the defendant's insurance co, and he (body shop employee) TOLD ME that they never write a full estimate. This can only mean that they do this to accommodate one of their largest customers (the insurance company), who then whittles down the payout even further by offering to pay only part of this partial estimate.
    2) Subsequent estimates by *independent* shops came in much higher, the top one being $6700.
    3) None of the estimates include the cost of a rental car, about $1600, based on the 22 days the shop said they'd need to keep the car.
    4) I'm also asking for about $1000 to compensate for loss of resale value, since cars with an accident history are worth less, even if repaired.

    I'm not asking for ANY compensation above the loss suffered & related expenses.
     
  19. Brian777

    Brian777 Law Topic Starter Member

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    LOL are you serious? You think YOU'RE in a position to give unrelated life advice? LMAO.

    His INSURANCE COMPANY would have to pay the judgment, not him. I can only surmise that you have no experience whatsoever in matters like this, and therefore are not even qualified to answer. Thanks for stopping by, please shut the door behind you on your way out thanks
     
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  20. Zigner

    Zigner Well-Known Member

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    You don't get the "top" estimate. Also, understand that, even if you "win" in small claims court, the defendant can appeal it, which starts you over in big-boy court, as if the small claims court trial never happened.
     

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