Recovering rental fees (Colorado)

[wantinglittle]

my wife was rear-ended by a commercial box truck. Driver was cited for driving without a license and driving recklessly. Both drivers have Progressive. She was found not at fault on our policy. But commercial policy is holding her as at-fault. We were initially told our rental would be paid for from the commercial policy as our adjuster assumed the commercial adjuster would change position. After going to Progressive's internal subrogation, the commercial policy did not change its position and we are now out $1,000 for the rental.

Someone suggested I take the commercial policyholder to civil court. To not hire an attorney but represent myself using a simple AI generated complaint. The other driver will then turn this over to Progressive and progressive will just compromise it out as it would be cheaper than them actually paying their lawyers to respond to the complaint.

Is this all valid information? am I running any risks here?

 

[adjusterjack]

Is this all valid information?

Yes.

Except for the part about the insurer settling rather than pay their lawyers. That is absolutely not true. They often settle based on the advice of their lawyers but not because they don't want to pay them.

In fact, Colorado is one of the few states that allow attorneys to represent litigants in small claims court. See Rule 520:

https://www.courts.state.co.us/userfiles/File/Self_Help/Small_Claims/Small_Claims_rules(1).pdf

am I running any risks here?

Sure. Like any litigant you run the risk of not winning.

Fortunately, getting rear-ended creates a presumption that the other driver was negligent, a presumption that is very difficult to overcome.

And, yes, they might settle once served. But that's no guarantee.

What is the other driver's insurer's reason for denying the claim?

 

[wantinglittle]

Driver claimed my wife swerved in front of him. That's all.

So if lawyer can represent in small claims, then should I go there instead? The initial reason for civil court was because a lawyer couldn't rep in small claims and therefore Progressive wouldn't get involved.

 

[Zigner]

Don't use AI to write your complaint. Just don't. If you can't figure it out yourself, then you need an attorney.

 

[Terminal1]

Driver claimed my wife swerved in front of him. That's all.

So if lawyer can represent in small claims, then should I go there instead? The initial reason for civil court was because a lawyer couldn't rep in small claims and therefore Progressive wouldn't get involved.

Try a free consult with an attorney. If you need to go to small claims for any reason they can probably help you at least understand why you are going to small claims. You can directly sue the insurance if they deny you, an attorney can help with that. So it's a he said she said insurance claim? I am unsure why your own insurance won't pay for a car if the other persons insurance even though it's the same company, is saying they will not. Does your policy have car rental while your car is being repaired because whether one is at fault or not, usually you get a car rental. I was at fault for closing my garage door on my own car, got a car rental while they repaired my trunk deck.

Just because you sue them in small claims doesn't mean they will turn it over to insurance. They may not know they can or honestly I don't know if they can. You can personally sue him for anything you want. Small claims is cheap. Say you are suing him for reckless driving which caused damage to your car and you needed a rental and are out 1K. if the Judge asks how all this happened, explain. They will say your wife swerved in front of them. But the thing is, a Judge may or may not buy that story since he didn't have a license and was driving a commercial box truck and cited for reckless driving! I think it's totally worth the shot if it were me.
From here on invest in cameras that are dash mounted. We use them and it's a life saver in these situations.

 

[Zigner]

You can directly sue the insurance if they deny you...

Why do you believe this to be the case?

 

[zddoodah]

Is this all valid information?

Yes.

So if lawyer can represent in small claims, then should I go there instead?

By "I," you mean your wife, right?

Regarding lawyers in Colorado small claims court, my understanding is that the plaintiff cannot have an attorney at the time of the initial filing. The defendant may choose to retain a lawyer. It must give a particular notice, and the plaintiff then has the option of retaining an attorney.

There is no way it makes sense to hire an attorney for a $1,000 claim, and I think it's possible that the other driver's insurer might be willing to settle rather than pay an attorney, which will cost more than the claim amount.

Try a free consult with an attorney. If you need to go to small claims for any reason they can probably help you at least understand why you are going to small claims.

The "why" is because it's a small claim, and small claims court is designed to be cheaper and simpler than regular civil court.

You can directly sue the insurance if they deny you

You can sue anyone, but the ability to sue doesn't mean there's a legal basis, and there's no legal basis for a direct action against a third-party liability insurer.

I am unsure why your own insurance won't pay for a car if the other persons insurance even though it's the same company, is saying they will not. Does your policy have car rental while your car is being repaired because whether one is at fault or not, usually you get a car rental.

You seem to have answered your own question. Not everyone carries rental car coverage (although everyone should because it's really inexpensive).

Just because you sue them in small claims doesn't mean they will turn it over to insurance. They may not know they can or honestly I don't know if they can.

Of course the other driver can turn it over to insurance. The OP made it clear that the other driver already had done so.

Say you are suing him for reckless driving which caused damage to your car and you needed a rental and are out 1K.

It's not generally necessary to state a particular cause of action in small claims court, but the cause of action would be negligence. "Reckless driving" is a criminal charge.

 

[Taxing Matters]

You can directly sue the insurance if they deny you, an attorney can help with that.

The problem with suing the insurer for the other party is that the insurer for the other party has no direct liability to you. You have to sue the other party and then their insurance will step in to represent the other party. You'd want to consult an attorney that handles personal injury/negligence claims to see if you have a worthwhile case — an attorney that does not work for Progressive — to decide what path is best to pursue.

If there is coverage under your own policy for rental coverage, that may be the best way to get reimbursed for that. Sure, it's the same insurance company for both of you, but for insurance companies it does matter what "pot" the money is coming from because the exact obligations of the insurance company varies depending on which contract the claim is paid.

If you make a claim on your own policy and your insurer denies it, then you have a bit of an uphill fight suing your insurer. In order to sue your own insurance company you either have to prove breach of contract or that the insurance company is acting in bad faith. The insurance company does not have an unrestricted obligation to provide their insured with a lawyer. Because insurance company contracts are written by the insurance company lawyers the contracts make it hard to sue for breach when the insurance company decides not to provide legal representation and there are specific requirements that need to be met to win a bad faith claim. The insurance company simply saying "no" is not enough. It won't hurt for you to ask an attorney who takes on bad faith and breach of contract claims against insurance companies if you might have a worthwhile claim. Just don't get your hopes up too high before that conversation. Go into it with an open mind and a real willingness to listen to what the lawyer tells you.

 

[PlantMom]

Slip N Fall attorneys mess around with insurance stuff all the time. No person was physically hurt. But, if there is any money to be had, here, one of those might help you. But they will take 30 to 40% probably.

$1,000 seems like a lot but if you forget about this and move on you won't even notice it. You could try to sue the driver in a small claims court and cross your fingers. I would personally let it go. Someone asked about insurance covering rentals. Yeah, you should always have a policy where insurance covers a rental. Because, sometimes car repairs take weeks to months, regardless of why the accident happened. Nothing feels more comforting when your car is in an accident than being given a "free" ride to get you to work while you deal with the headache of if the repair shop is doing what they should do and not sub - par work. Take out a policy with extra coverages and consider this a life lesson that unfortunately you did not deserve.

Look at it this way, I am personally out thousand(s) right now and the person clearly broke a contract. Every lawyer I have talked to says I can win. But, it will cost thousands to get what I am owed. It will cost you to get this 1 thousand, if you even can. It is such a small amount let karma deal with that driver. I would be over the moon if I were only out 1K.