Insurance not covering all losses

[chochman]

Jurisdiction

Florida

I was recently in an auto accident in which the other driver was at fault; he ran a red light. There were no serious injuries (just bruises), but my car was totaled. His insurance (although we both have the same insurance company) has offered to settle for much less than the replacement value of the vehicle. I have already spoken with local counsel who advised me that what the insurance company is offering - their determination of the "fair market value" - is as good as I can hope to get out of them. The question she was not clear on was whether I would be precluded from pursuing my further damages against the other driver in small claims court.

I took out an unsecured loan to buy the vehicle in 2016. Because the lender has no lien on my car, I did not have "gap insurance." Even if I send 100% of the insurance settlement directly to the lender, I'm still responsible for the remainder of the loan, about $2800. At the very least, I would want to try to recover that from the other driver. Aside from the unlikelihood that I would ever actually collect, would I have a case in small claims court for this, or would I be unable to pursue it?

Thank you in advance.

 

[mightymoose]

The insurance company might be offering the maximum allowed by the policy. If you seek more than the coverage allows you'll have to use other means to get it.

 

[army judge]

You can sue the other party in small claims.
There are two potential problems, even if you prevail:
1 = Fewer than 90% of successful small claims litigants ever collect a dollar of their judgment;
2 = You might not get the delta in what you owe, but you might get something.

=== Whatever you get, you'll still have to endeavor to collect it. That's the frustrating part about small claims, defendants see it as a toothless tiger. In FL, many of the assets a person has are protected from seizure to satisfy a judgment.

 

[txls]

You can check sites like Kelley Blue Book to see if their valuation is correct. Also you may be able to see if you have better coverage and they might pick up the difference.

 

[adjusterjack]

His insurance has offered to settle for much less than the replacement value of the vehicle.

You don't get replacement value, you get Actual Cash Value, which is the market value for the same make, model, mileage, condition, features.

I have already spoken with local counsel who advised me that what the insurance company is offering - their determination of the "fair market value" - is as good as I can hope to get out of them.

That's right.

Car owners always think their car is worth more than it is.

The question she was not clear on was whether I would be precluded from pursuing my further damages against the other driver in small claims court.

You would be precluded from pursuing further damages if you settle with the insurance company. If you want more than what the insurance company is offering you will have to decline the offer and sue the other driver for the entire amount that you think your car is worth and convince the judge to rule in your favor.

I took out an unsecured loan to buy the vehicle in 2016. Because the lender has no lien on my car, I did not have "gap insurance." Even if I send 100% of the insurance settlement directly to the lender, I'm still responsible for the remainder of the loan, about $2800.

Sorry, that's your problem for making a bad deal.

At the very least, I would want to try to recover that from the other driver.

That's NEVER going to happen.

Aside from the unlikelihood that I would ever actually collect, would I have a case in small claims court for this, or would I be unable to pursue it?

As I wrote, you would have to decline the offer and sue for the entire amount. You cannot accept the offer and then sue for the difference. It'll just be thrown out of court. And you aren't going to win the upside-down difference between your loan balance and the ACV of your car.

You can sue the other party in small claims.
There are two potential problems, even if you prevail:
1 = Fewer than 90% of successful small claims litigants ever collect a dollar of their judgment;

That, unfortunately, is often true, but not when somebody has an insurance policy backing them up. If you win against such a person, even in small claims court, the insurance company is contractually obligated to pay the judgment on behalf of its policyholder.