auto accident

I was entering a roadway at night, I waited until it was clear both directions then entered the roadway. I was hit by a vehicle that had no headlights on. We were both insured, 2 witnesses stopped and told me they saw the other vehicle driving with no lights on prior to the accident then saw the accident. They waited till police arrived and gave their info to the police. The other driver denied that her lights were off and stuck to it, even while standing face to face with the witnesses who told her that her lights were definitely off. After getting statements from the witnesses, the other drivers insurance company said they have concluded that their insured driver was 60% at fault and I was 40% at fault for “breeching my obligation to make sure all is clear before entering a roadway”. They mailed me a check for $399.00 which is 60% of the repair estimate that their estimater came up with. He estimated $680.00 total to repair my truck. I have obtained my own estimate from a body shop near my house which comes to $1180.00. I am trying to find out if I have strong grounds for a small claims case to collect the entire $1180.00 to repair my vehicle, and if so, who I should file it against……the driver that hit me or the insurance company. Any advice would be greatly appreciated.

[JETX]

"I am trying to find out if I have strong grounds for a small claims case to collect the entire $1180.00 to repair my vehicle,"
*** From your post, it certainly appears that you have SOME basis for a claim against the other driver. How 'strong'?? No one can answer that for you, because we simply don't have all the facts. For example, if this accident happened on a totally dark street without ANY lighting, on a dark night and the vehicle was 'invisible' without lights, then he SHOULD be 100% liable. However, if it happened in daylight, his liability would be reduced to 0%. Only you know the conditions and cirumstances of the accident.

"and if so, who I should file it against……the driver that hit me or the insurance company."
*** You would file against the other driver. His insurance company would then provide an attorney for him as part of his coverage.

One note.... don't endorse or cash that check. Most insurance checks include a release from liabiity and if you sign that, you forego any further claims on that accident.

Thanks alot for the reply....I appreciate it. The accident actually occured on a street that had plenty of streetlights, it is a well lit area, alot of stores and stuff. And the other drivers insurance company mentioned in their latest letter that they had sent someone out to the scene of the accident to investigate if it was a well lit area or not, and that investigator concluded that it is well lit, which it is, I admit, but, since the law doesn't say that you must have headlights at night only if your driving in an area that isn't well lit, and since I obviously couldn't see the car with it's lights off when I most surely would have if it's lights were on, I was hoping that maybe the other drivers negligence would outweigh my failure to yeild right of weigh. You definitely hit right on the issue by mentioning how well lit the area is. I actually don't 100% have to take this driver to court and collect the full amount of repair cost, my truck has since developed serious troubles and since it is an old truck, 1987 toyota, I may not ever repair it anyway. It's just more of a principle thing, I make 5 minute trip to video store, look both ways before pulling out, fulfilling my obligation to the law and to safety or so I thought, but after I get hit, It's my fault, or nearly halfway my fault.....kinda screwy. Also because she tried to lie and wouldn't just say...."Ok, I made a mistake, my lights were off"......anyway...i appreciate the input and I think I may just let it go since I probobly wont repair the truck anyway**************..thanks aagain

[JETX]

And lets not forget that you will probably get a claim against you to recover the damages YOU caused to her car.

Yeah well, I haven't heard anything about THAT yet, in that case I would most definitely have to take it to court