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Should I use small claims court for more compensation?

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Jake678

New member
What is the name of your state? California

I was in a traffic accident ten months ago in which my car was totaled. The at-fault driver had the minimum $10k property damage coverage. So the $10k was split between me and the other driver who was not at-fault. The other not at-fault driver's damages were $12.8k, and my damages were $6.7k according to the at-fault driver's insurance company. The offers were $6.6k for the other driver, and $3.4k for me.

Can I take the at-fault driver to small claims court for the difference between my damages and what his insurance company has offered me? The impound fees for my totaled car and other costs to replace my car with a comparable car amounted to $11.5k. Can I sue for all the costs to replace my car or just the fair market value of my totaled car? Should I agree now to accept the $3.4k that has been offered to me? Thanks for any replies.
 


Taxing Matters

Overtaxed Member
Can I take the at-fault driver to small claims court for the difference between my damages and what his insurance company has offered me? Th impound fees for my totaled car and other costs to replace my car with a comparable car amounted to $11.5k. Can I sue for all the costs toreplace my car or just the fair market value of my totaled car? Should I agree now to accept the $3.4k that has been offered to me? Thanks for any replies.
Here's the problem for you. If you take the insurance offer the insurance company will typically have you sign an agreement which will include, among other things, that you cannot sue the driver for anything more than what the insurer is offering. So to get more, you'd need to sue the at fault driver. You may only sue for up to $10,000 in small claims actions in California. So if you want to sue in small claims court, your claim will be limited to $10,000. What you can win in damages in a lawsuit for damage to your car is the lesser of (1) the fair market value of the car just before the accident or (2) what it will cost to return the car to its previous condition. Bear in mind that since the policy limits recovery to no more than $10,000 and the insurer has to split that between you and another driver the insurance company won't pay more than what it has already offered. So if you win that lawsuit you'd have to hope that the at fault driver has some assets you can attach. But I'll bet the at fault driver doesn't have much or he'd have purchased a better policy than the state minimum. So you'd want to know that the at fault driver has something you can attach to collect. Otherwise, the judgment you get may end up just being worthless paper to you.

I know, your situation sucks. Most states mandatory policies are too low to pay out for the kind of damages that occur today. States don't update that requirement very often.
 
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adjusterjack

Senior Member
TM gave you the same answer I was preparing, albeit more eloquently. :)

I would add another comment. You would be unlikely to win 10 month's worth of storage fees as you would have been required (under negligence law) to mitigate your damages by removing the car from storage to avoid racking up the fees.

If the other driver's insurance will pay you $3.4K and also pay the storage fees, you might be wise to take the money and chalk it up to experience.

I am guessing you did not have Collision coverage or you probably would have looked to your own insurance long ago.

This is the risk you take when you "self-insure" your car for Collision and Comprehensive.

I'm not faulting you for doing that. With insurance costs skyrocketing it can be practical. I have done it for many years and have piled up quite a bit of savings on my low cost cars. But I accept the fact that one day I may have to replace a car out of my savings and I am prepared to do that.
 

Jake678

New member
My car was totaled in the accident, and I removed my car from the impound yard after seven days.

There is no way to determine whether the at-fault driver has sufficient assets to compensate me for the FMV of my car, correct? Even if it were possible to determine his assets, I'm sure there are schemes that a defendant can use to avoid paying the full amount or anything at all if they lose in court. I guess the best option is to accept the $3.4k offer.

The right thing for the at-fault driver to do would be to contact me and the other driver who was not at-fault and compensate us for our costs that were greater than the amounts his insurance company paid us if he could afford to do so. But how many people do that? His maneuver that caused the accident was reckless, so he's morally responsible to compensate us. Everyone in the accident is lucky that no one was injured in an accident in which all three cars were totaled.

Thanks for the informative responses. I appreciate it.
 

adjusterjack

Senior Member
There is no way to determine whether the at-fault driver has sufficient assets to compensate me for the FMV of my car, correct?
Not accurately but you can get an idea from the age of his car, where he lives (neighborhood, apt or house or rental house).

When you get a judgment you can have him in for a "debtor examination" where he will have to reveal his assets and income under penalty of perjury.

Even if it were possible to determine his assets, I'm sure there are schemes that a defendant can use to avoid paying the full amount or anything at all if they lose in court.
True. Doesn't have to be a "scheme." There are limits on wage garnishment and exemptions on personal property. Judgments are often not worth the paper they are printed on. I know. I had several like that when I was a landlord.

I guess the best option is to accept the $3.4k offer.
Looks like.

The right thing for the at-fault driver to do would be to contact me and the other driver who was not at-fault and compensate us for our costs that were greater than the amounts his insurance company paid us if he could afford to do so. But how many people do that? His maneuver that caused the accident was reckless, so he's morally responsible to compensate us. Everyone in the accident is lucky that no one was injured in an accident in which all three cars were totaled.
Yes, well, we all wish we lived in a perfect world. Never gonna happen. Never has happened.
 

zddoodah

Active Member
Should I agree now to accept the $3.4k that has been offered to me?
So...you were in an accident ten months ago in which the at-fault driver's liability exceeded his insurance limits and the insurance claim still hasn't been resolved? I guess the answer is yes.


Can I take the at-fault driver to small claims court for the difference between my damages and what his insurance company has offered me?
You should try to get the insurer to pay the pro rated share of damages without you having to sign a release for all liability (i.e., a release for only the amount paid). Then you can sue the at-fault driver for the balance. The problem is that the insurer doesn't have to agree, and you'd then be faced with the issues described in the prior responses. Also, someone carrying minimum coverage isn't likely to have assets and income to pay. Also,


Can I sue for all the costs to replace my car or just the fair market value of my totaled car?
The measure of damages is the value of property at the time of the accident.


There is no way to determine whether the at-fault driver has sufficient assets to compensate me for the FMV of my car, correct?
You could hire a private investigator, but that probably wouldn't be money well spent.
 

Jake678

New member
The at-fault driver's insurance company told me that the reason the case has taken so long to resolve is that the other driver who was not at-fault was using an attorney. Would using an attorney prolong a traffic accident case this much?

So I should ask the at-fault driver's insurance company (Mercury) for the $3.4K payment but to not release the at-fault driver from further liability? In the offer letter it says that if I agree to accept the $3.4K payment that their insured will be ineligible for any further liability. The letter makes it sound like if I accept the $3.4K that their insured cannot be held liable for anything.

If Mercury agrees to pay me the $3.4K and to not release the at-fault driver from further liability, then I can sue the at-fault driver for the FMV of my car which was $6.7k according to Mercury minus the $3.4K that Mercury pays me?

The at-fault driver rents but in a very expensive area, and his car in the accident was a 2022 Camry. I spoke to his girlfriend, who was his passenger, right after the accident and she told me that he's a drug addict and kidnapped her a few days previous and wouldn't let her go. I told the officers on scene what she told me, and they investigated. They did not perform a sobriety test on him. He has a reckless lifestyle which is another reason I want to sue. I don't want him to get away with his reckless behavior that caused the accident.
 

Zigner

Senior Member, Non-Attorney
Let's make this simple:

Accept the $3.4k and move on with your life, or accept nothing and sue for the full amount.

EDIT: To be clear, if you accept nothing and sue for the full amount, you still might end up with nothing, or everything, or somewhere in between.
 

zddoodah

Active Member
Would using an attorney prolong a traffic accident case this much?
Irrelevant, but in the abstract world of all that is hypothetical, virtually anything is possible.


So I should ask the at-fault driver's insurance company (Mercury) for the $3.4K payment but to not release the at-fault driver from further liability?
That's what I'd do. In fact, it's exactly what I did do last time I was in an accident (three car rear-end accident in which I was the middle car). In fact, I think it was the same insurer.


In the offer letter it says that if I agree to accept the $3.4K payment that their insured will be ineligible for any further liability. The letter makes it sound like if I accept the $3.4K that their insured cannot be held liable for anything.
That's the same thing I was told.


If [the insurer] agrees to pay me the $3.4K and to not release the at-fault driver from further liability, then I can sue the at-fault driver for the FMV of my car
Yes.

I'll point out that it didn't work for me. However, I didn't have to sue to make up the difference because my collision coverage took care of the damage to my vehicle, and my insurer even waived the deductible. One of the prior responses mentioned collision coverage, but you ignored that. Did/do you have it? If so, then this becomes a bit of a moot point.
 

Taxing Matters

Overtaxed Member
He has a reckless lifestyle which is another reason I want to sue. I don't want him to get away with his reckless behavior that caused the accident.
That's a fool's errand. The lawsuit isn't about his lifestyle, his habits, or his reckless behavior (other than what he did to cause the accident). The lawsuit isn't going to magically make him change his ways. Especially if he has substance abuse problems, in which case the substance he's addicted to is controlling his life, rather than himself. The fact that he's renting means there is no equity in a home you can attach. Driving a brand new car means that, if he took out a loan to pay for, he's likely right now upside down on the loan (meaning he owes more than the car is worth), and that would have been true even before the damage to his car in the accident. When you buy a new car, you lose several thousand dollars of value the moment you drive it off the dealer lot and it becomes a "used car". If he's a drug addict, chances are good that much of his money is going to pay for the drugs. And if he's involved in criminal activity, he may no longer have any income to attach if he goes to jail. Just going by what you have said in this thread, he does not sound me like someone likely to have assets that you could easily attach to pay any judgment you get.

The issue here is compensation for your loss. Keep your focus on that, not on his other faults. Those other faults are irrelevant. You can't punish him for those in the lawsuit or, for the most part, even bring them up in court. So you need to decide what course of action will, after all costs are considered, get you the most money to compensate you for the loss you had. With the amount of money at stake here, it won't be cost efficient to hire a private investigator to dig around to see if he's really got assets to collect. Unless you have some information about non exempt assets or income that he has that you can attach, it's probably best to just cut your losses and take what the insurer is offering you. You can ask the insurer for a settlement that does not release the driver from liability, but even if you get that, you still have to decide whether the time and cost to sue him will actually result in you collecting enough to exceed those costs and get money that will help pay the damages you suffered. It's not always an easy call to make in this situation when your knowledge of what he has is limited. But every penny you spend trying to find his assets is a penny less you'll have to compensate you for the loss. While you can add some of those costs to the judgement, it still means you have to collect more from him just to break even.
 

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