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I was hit by another driver, no injuries but their insurance refuses to pay. Whom should I sue?

Discussion in 'Auto Accidents, Injuries' started by Brachah, Dec 28, 2021.

  1. Brachah

    Brachah Law Topic Starter New Member

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    Ok I was hit in a "minor" collision, and I believe it was the other driver's fault because he was required to yield but didn't, and slammed right into me. My car is perfectly driveable, but the damage will cost several thousand dollars to repair and his insurance has refused to pay. I got it all on my dash cam, and I researched the traffic laws to be sure I'd have a case if I needed to sue, and it looks like I will need to. I was speaking casually with an attorney acquaintance, I mentioned that I'd be nervous suing an insurance company as their attorneys are surely highly experienced at this, but he said since the damage is under $10,000 it would be a small claims case, so no attorneys are permitted.

    He said I should sue only the driver, and if he loses, his insurance carrier would be required to pay it--is that true?? It seems like I should sue maybe the driver AND also his insurance carrier as a co-defendant...so whom exactly do I sue here? If I sue only the driver and it turns out after the fact that I should've also sued the insurance company as a co-defendant, would I have screwed myself? That's hat I'd be afraid of.
     
  2. mightymoose

    mightymoose Moderator

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    Why are you suing?
    Have you spoken to your own insurance company about this? You have your cart way in front of your horse.
     
  3. Tax Counsel

    Tax Counsel Well-Known Member

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    In general, yes, it's true. You typically don't sue the insurance company in most states in a basic traffic accident like this because it is not the insurance company that hit your car. The other driver was the person in the wrong and the one obligated by law to pay you (once you have a judgment). That judgment then triggers the insurer's contractual obligation to pay you up to the limits of the policy.
     
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  4. Brachah

    Brachah Law Topic Starter New Member

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    No I don't. My insurance policy only covers damage that *I* might cause, which doesn't happen because I'm a very careful driver. I ran it by them (filed a claim) and they rejected it saying it's the other driver's fault.
     
  5. Brachah

    Brachah Law Topic Starter New Member

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    Hmm ok let me ask you this - what if I sued them as a co-defendant anyway; they (the insurance company) would be forced to appear in small claims (sans attorney)? What would the judge do, just exempt them from being a defendant? Could this have the benefit of maybe inducing them to take a serious look at the claim and possibly just pay it, seeing all the evidence against their policy holder first-hand, and maybe lead them to conclude that it's in their best interest to just pay it rather than their client possibly appealing the decision (if it were in my favor) and risking a proper civil trial, which would then cost them attorney's fees on top of a possible judgment?

    I mean is there any possible DETRIMENT to me naming the insurance company as a defendant?
     
  6. flyingron

    flyingron Well-Known Member

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    You have no standing to sue the other insurance company, they have no obligation to you. You sue the other driver (and the owner of the vehicle if different). If they have insurance, their insurance will step up at that point.
     
    Zigner, Brachah and justblue like this.
  7. Redemptionman

    Redemptionman Active Member

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    yes as @flyingron said, plus insurance companies have attorneys on retainer. They could care less about you or what you do. Actually in most cases they are betting that they can bully or scare you away. Modern insurance companies are more or less a cluster, which is why businesses with means self insurer. The Insurance companies have lobbied so hard to limit claims/ cap damages in order to keep rates down. You learn fast which ones pay and which ones are a JOKE.

    Like was said if you file a claim, file it against the driver who you said caused the damage. Their insurance company should step up and pay at that point.
     
  8. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    Let's make a couple of things clear here.

    1. The insurance company didn't run into you. So you will need to sue the other driver and/or owner of the car.

    2. If you sue the other driver it will be the insurance company that provides the defense attorney in most cases.

    3. Though I'm not 100% sure about Califonia law on this. In many states, if you sue in a situation like this it can get moved out of small claims court so the respondent can be represented by a lawyer.
     
  9. Redemptionman

    Redemptionman Active Member

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    In that case you will need a lawyer and you may not find one in dealing with property damage only. Interesting enough in various situations and the current environment (not wanting to bring the fury of insurance man @adjusterjack) it is difficult to get the insurance companies to move especially if you have liability only or dealing with state min insurance individuals.

    I would try small claims first if the property damage is under your minimum limits for a case and file against the person who hit you if they are at fault. California is a pure comparative fault state meaning who could get a proportion amount of your damages back after a determination of fault has been rendered.
     
  10. Zigner

    Zigner Well-Known Member

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    I would disagree with regard to an attorney representing the insurance company in small claims. If it is a staff attorney who is not hired solely to represent the insurer in small claims, then it's entirely possible for the employee that the insurer sends to represent them to be an attorney.

    Law section.

    116.540.

    (a) Except as permitted by this section, no individual other than the plaintiff and the defendant may take part in the conduct or defense of a small claims action.

    (b) Except as additionally provided in subdivision (i), a corporation may appear and participate in a small claims action only through a regular employee, or a duly appointed or elected officer or director, who is employed, appointed, or elected for purposes other than solely representing the corporation in small claims court.

    (emphasis added)
     
  11. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    Good point. I tend to forget that because staff attorneys weren't allowed in cases I use to have to deal with in my state.
     
  12. adjusterjack

    adjusterjack Super Moderator

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    You have not aroused my fury. ;)

    I agree with your comment.

    Liability claims against an allegedly at-fault driver are adversarial and the liability insurance carrier has a contractual obligation to defend its insured when there is a dispute about who caused the accident. OP's opinion is just that, an opinion, and OP has not provided any details that would cause me to agree or disagree.

    That being said, we move on.

    The insurance company would be dismissed as a defendant in a heartbeat and the judge could very well fine you for abuse of process. You sue the other driver. Period.

    See the green "Upload a File" button below the message box. See if you can upload a copy of the video. I'd be happy to review it and give you my opinion.
     
  13. Tax Counsel

    Tax Counsel Well-Known Member

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    No. The insurance company would file a motion to dismiss your claim against it as not being hte proper party to the action.

    Basically, yes. Unless you can state a valid claim against the insurer itself the judge will dismiss the insurer as a defendant. And a small chance the judge imposes a penalty on you for filing a claim that should not have been brought.

    No. It is not the driver who would decide on an appeal, it would be the insurance company. Naming the insurer in the small claims action will do you no good. It is not the party that harmed you.

    Yes. The (probably small) possibility that the court penalizes you for including the insurer that I mentioned before, e.g. having to pay the insurer's cost to file the motion to dismiss or whatever.
     
  14. zddoodah

    zddoodah Well-Known Member

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    The insurance company will send a non-lawyer who is trained very well in legal matters because insurance companies have employees who have to handle small claims appearances. The judge will immediately dismiss the insurance company, and you will have done nothing but (1) wasted your time, (2) wasted the court's time, (3) wasted the money that it will cost you to serve the insurer, and (4) incrementally have contributed to insurance premiums paid by drivers in the State of California by forcing the insurer to spend money on a frivolous legal claim.

    The insurer being dismissed will be the first thing that happens, and the insurance rep will likely leave and, if he/she doesn't, he/she won't pay the slightest attention to the presentation of evidence.

    The insured is not the insurer's "client," and any decision by the insured to appeal will not cost the insurer attorneys' fees. But it might cost you fees, which would not be recoverable as apart of the judgment.

    This does not allow an insurer (or any other corporation) to be represented by a staff or in-house attorney in small claims court. This section simply authorizes what is otherwise prohibited: for a corporation to be represented in court other than by an attorney.
     
  15. Zigner

    Zigner Well-Known Member

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    Where is that stated in the law?
    (Curious, not snarky)
     
  16. zddoodah

    zddoodah Well-Known Member

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    CCP 116.530(a): "Except as permitted by this section, no attorney may take part in the conduct or defense of a small claims action." Any exceptions must be stated in section 116.530. No other section in the Small Claims Act can be interpreted to allow attorneys.

    There are only three exceptions, in sub-section (b): "Subdivision (a) does not apply if the attorney is appearing to maintain or defend an action in any of the following capacities:

    (1) By or against himself or herself.
    (2) By or against a partnership in which he or she is a general partner and in which all the partners are attorneys.
    (3) By or against a professional corporation of which he or she is an officer or director and of which all other officers and directors are attorneys."

    None of those situations allows an in-house attorney for an insurance company (or any other corporation or LLC) to appear in a small claims trial.

    CCP 116.540(a) states, "Except as permitted by this section, no individual other than the plaintiff and the defendant may take part in the conduct or defense of a small claims action."

    In a case where the plaintiff or defendant is a corporation, some individual must appear on behalf of the corporation. Since the normal rule is that a corporation must be represented by an attorney, CCP 116.540(b) abrogates that rule for purposes of small claims cases. However, since CCP 116.530 doesn't allow attorneys in cases involving insurers, CCP 116.540 cannot properly be interpreted to allow what CCP 116.530 prohibits.

    The interpretation of CCP 116.540 that you suggested would apply not just to insurers but also to ANY corporation or LLC. That would be antithetical to the stated purpose of small claims courts.
     
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  17. Zigner

    Zigner Well-Known Member

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    Thank you, zddoodah, for the explanation.
     
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  18. Brachah

    Brachah Law Topic Starter New Member

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    I'm having trouble moving a copy of the video from my phone, it's too large. But that brings up something else I was wondering about; when I bring the video to the trial as evidence (assuming I can get it moved onto my laptop), do I burn a copy on a DVD to leave with the judge for him/her to review later when making their decision? I'm trying to take a series of still photos as well, but the video makes it super clear who was where when the accident occurred.
     
  19. mightymoose

    mightymoose Moderator

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    You should have no trouble uploading the video to YouTube and providing a link.
    For court purposes, if necessary, you can put the video on an appropriate size USB drive.
     
  20. adjusterjack

    adjusterjack Super Moderator

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    The real reason your own company rejected the claim is because you don't have collision coverage. Had you been at fault the damage to your car would have been rejected for that reason and the damage to the other driver's car would have been paid for by your liability coverage.

    A USB stick would probably be better than a DVD.

    You'll need a copy for the judge, a copy for the defendant and a copy for yourself.

    Bring a laptop so you can play the video in court. Don't count on any player being available in court. The video is evidence and must be presented in court so that the defendant and the judge can view it during the trial and so that the defendant can exercise his right to challenge it. Otherwise it might be declared inadmissable.

    PS. Have you sent the video to the other driver's claim rep? If not, you should do that before kvetching about court.
     

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