New, Uninsured Driver Rear Ended by Insured Driver, Help with Insurance, Suing Proces

[kapeedmaro]

What is the name of your state (only U.S. law)? California


My girlfriend [Car B] (new driver, uninsured) and I were rear ended the other day on the highway by a possibly underinsured driver, lets call her [Car A]. And we were hit at such force it hit us into the car in front of us [Car C]

The police report indicates she was at fault, as both cars gave statements saying essentially that she, Car A, was 100% at fault.
However, that still leaves us with the question of how we proceed in this case. We know so far that we have to:


[*]file a claim with at faults insurance
[*]get 2 estimates from body shops about damage (visual estimate says approx 7,000)
[*]gather our personal injury associated costs (visit to ER, xrays, pain killer medication)
[*]not forget to account for a "loss of value" claim now that the car has been in a wreck.
[*]do we have to report this to the DMV?
[*]cry from not knowing what were doing



My questions for legal advice is: if the driver of Car A is at fault but is under-insured (CA minimum insurance is 5,000 in damages) -- and she is responsible for 2 cars -- and damages are already around that amount for Car C (what the driver of Car C told us via text), then how does that work, Are the drivers of Car B (us) and Car C in competition for who can get that amount first or are we each entitled to that much separately?

from what the insurance company of the driver at fault [Access Insurance] has told us, they only sell 5,000 and 10,000 policies, so does that mean if our claim of damages is more than 5000 dollars (it will be, car is in bad shape) that between Car B and C's damages claims against her, her insurance will run out and we will have to end up suing the girl personally for the remaining cost. Who is entitled to a larger portion of the insurance claim, our damage is a lot worse, in addition to it being a newer car, and loss of value isnt even factored in at this point.

TL;DR:
is an insurance adjuster just trying to pull a fast one to lower our expectation of what we can expect? or should we be preparing to both sue the driver of Car A as well as race to get Car B fixed and paid for before Car A's insurance policy runs out/dries up.

 

[HighwayMan]

You should have been worried about driving with no insurance. Obviously you didn't think about the consequences.

It's possible that the lead car driver will sue both of the other drivers - I've known it to happen. Then what will you do?

I have no sympathy for you or your girlfriend. As far as I'm concerned she shouldn't have a car.

 

[kapeedmaro]

You should have been worried about driving with no insurance. Obviously you didn't think about the consequences.

It's possible that the lead car driver will sue both of the other drivers - I've known it to happen. Then what will you do?

I have no sympathy for you or your girlfriend. As far as I'm concerned she shouldn't have a car.

I know that it looks bad. but she thought she was covered by her insurance. however her insurance company is one of the worst (inifinity) and she signed a document saying she was an excluded driver unknowingly, the insurance agent made it sound like she was covered. But only upon calling them to help with the claim did she find out she wasnt.

also if the car behind is at fault and the lead car is blaming the rearmost car in his statement, how can we possibly be sued?

 

[davew128]

I know that it looks bad. but she thought she was covered by her insurance. however her insurance company is one of the worst (inifinity) and she signed a document saying she was an excluded driver unknowingly, the insurance agent made it sound like she was covered. But only upon calling them to help with the claim did she find out she wasn't.

Seriously? When I moved to CA it took me 10 minutes online to switch carriers. If her parents pay the policy and let her drive as an excluded driver, shame on them.

also if the car behind is at fault and the lead car is blaming the rearmost car in his statement, how can we possibly be sued?

Very easily. Winning? Maybe not, but you could be sued.

 

[adjusterjack]

is an insurance adjuster just trying to pull a fast one to lower our expectation of what we can expect?

No.

The way property damage liability insurance works with two vehicles damaged by one driver is that the limit is pro-rated based on the amount of damage to each vehicle. If her car (you did say it was "her car") sustains $10,000 in damage and the car in front of you sustains $5000 in damage she gets 2/3 of the $5000 property damage limit and the other driver gets 1/3.

It doesn't matter when she gets her claims in as the insurance company will defer payment to either until both claims are submitted.

Anything beyond the coverage amount (including diminished value) she will have to sue for and you have no standing in the property damage lawsuit.

As for injuries she cannot collect more than her actual costs of the injury which pretty much limits her to medical bills and no pain and suffering or any of that stuff that lawyers love. The exception to that is if the at-fault driver was DUI or DWI.

See CA Civil Code 3333.4:

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=civ&group=03001-04000&file=3333-3343.7

If you, by chance are the owner, or co-owner, of the vehicle and she the operator then neither of you would be able to collect more than actual costs.

The ironic part of all this is if the at-fault driver has low limits he/she is not likely to be able to pay anything above those limits and will have no money or assets to go after so the majority of your injury and damage costs will be borne by you and your girlfriend.

That's called "poetic justice."

 

[ecmst12]

Her license will be suspended for a year as well. CA does not mess around with uninsured drivers.

 

[kapeedmaro]

No.

The way property damage liability insurance works with two vehicles damaged by one driver is that the limit is pro-rated based on the amount of damage to each vehicle. If her car (you did say it was "her car") sustains $10,000 in damage and the car in front of you sustains $5000 in damage she gets 2/3 of the $5000 property damage limit and the other driver gets 1/3.

It doesn't matter when she gets her claims in as the insurance company will defer payment to either until both claims are submitted.

Anything beyond the coverage amount (including diminished value) she will have to sue for and you have no standing in the property damage lawsuit.

I take it from your name you are an adjustor, so that's the ideal point of view i need. So i thank you for your reply.
When you say we have no standing in the property damage lawsuit what does that mean exactly. Like me personally, the boyfriend, or her and her car damages?
why do we have no standing exactly, if you didnt mind explaining it?

As for injuries she cannot collect more than her actual costs of the injury which pretty much limits her to medical bills and no pain and suffering or any of that stuff that lawyers love. The exception to that is if the at-fault driver was DUI or DWI.
See CA Civil Code 3333.4:
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=civ&group=03001-04000&file=3333-3343.7

this is fine by us, her car is new and we held up mostly alright. I however, would really like her car to be repaired back to its previous state (its less than 1 year old)
is it possible to get a settlement on the bodily injuries we might have sustained that we havent gone to the doctor yet (because we dont know if she is going to have money to cover it)
or will they basically only pay for things we can bring them a reciept for? Would an adjuster be more likely to play ball if I told them I might forego getting a full MRI of my back issues if they are willing to fix the car in a timely manner? Not saying I would but it just seems that most of our damages in terms of cost will come from the potion of her policy that covers the least amount of damages, and if there is any way to get the remaining damages through the other aspects of her policy (bodily injury, etc)

If you, by chance are the owner, or co-owner, of the vehicle and she the operator then neither of you would be able to collect more than actual costs.

The ironic part of all this is if the at-fault driver has low limits he/she is not likely to be able to pay anything above those limits and will have no money or assets to go after so the majority of your injury and damage costs will be borne by you and your girlfriend.
That's called "poetic justice."

is it possible to both accept the insurance company's offer for the maximum payout of its policy limits, (in the event the sum of all damages exceed her policy limits) and then still pursue her for the rest through small claims? or is it take it or leave it hoping to get more from a court ruling, THEN insurance pays its maximum and she pays the rest. How does the reimbursement process work in terms of timeframe we can expect to be reimbursed from this.

my girlfriend has no money now (graduate school student at an expensive school), so she is to pay all of this out of pocket and hope to seek reimbursement later in court?
if there are additional drivers on her policy, is it possible to go after them as well in the suit? Or her parents? (she is young).

would you advise getting a lawyer?

Her license will be suspended for a year as well. CA does not mess around with uninsured drivers.

can they still do that if she wasnt cited at the scene of the accident? isnt there a formal process that has to be done for that to happen, or can they retroactively do that.

 

[adjusterjack]

I take it from your name you are an adjustor, so that's the ideal point of view i need. So i thank you for your reply.
When you say we have no standing in the property damage lawsuit what does that mean exactly. Like me personally, the boyfriend, or her and her car damages?
why do we have no standing exactly, if you didnt mind explaining it?

I am a retired adjuster, having spend 35 years in various phases of the insurance industry.

You may have mistaken "you" for plural instead of singular.

You, the boyfriend who doesn't own the car, have no standing to be involved in the property damage to the car. She, the girlfriend who owns the car, does have standing to make the claim (and lawsuit) for the property damage to her car.

this is fine by us, her car is new and we held up mostly alright. I however, would really like her car to be repaired back to its previous state (its less than 1 year old)

It's likely that she will have to pay for a good part of those repairs herself if trying to get it from the at-fault driver is unsuccessful.

is it possible to get a settlement on the bodily injuries we might have sustained that we havent gone to the doctor yet (because we dont know if she is going to have money to cover it)
or will they basically only pay for things we can bring them a reciept for? Would an adjuster be more likely to play ball if I told them I might forego getting a full MRI of my back issues if they are willing to fix the car in a timely manner?

If you don't get treated because you can't afford to get treated then you have no claim because if the injuries were serious enough you would find a way to get treatment whether you had the money or not. I can guarantee you that threatening to get treatment if the adjuster doesn't pay you without getting treatment is never going to work. At least not unless you want to settle for peanuts.

is it possible to both accept the insurance company's offer for the maximum payout of its policy limits, (in the event the sum of all damages exceed her policy limits) and then still pursue her for the rest through small claims? or is it take it or leave it hoping to get more from a court ruling, THEN insurance pays its maximum and she pays the rest. How does the reimbursement process work in terms of timeframe we can expect to be reimbursed from this.

Let's separate that into two parts.

With a bodily injury claim you will have to sign a release of all claims before you get the check. That release absolves both the insurance company and its insured from any further claims or lawsuits and that's all you get. You would have to decline the settlement and sue for the full injury amount.

With the property damage there is typically no release so you are free to sue for any shortfall in the repair costs.

if there are additional drivers on her policy, is it possible to go after them as well in the suit? Or her parents? (she is young).

If you mean the at-fault driver that caused the accident, the other drivers listed on the policy would not be actionable. However, if her parents actually owned the vehicle and were the named insureds on that policy they could potentially be liable under the theory of "negligent entrustment." In California the elements of "negligent entrustment" are:

The driver was negligent in operating the vehicle. The driver was operating the vehicle with the owner's consent. The owner knew or should have known that the driver was incompetent or unfit to drive the vehicle. the driver's incompetence or unfitness was the substantial factor in causing harm to the victims.

Those last two elements are very difficult to prove. Just being young and even being a new driver doesn't get you there.

would you advise getting a lawyer?

That's up to you. Wouldn't hurt to consult a personal injury attorney but I think it's a little early to commit to one until you see how all of this plays out.

Her license will be suspended for a year as well. CA does not mess around with uninsured drivers.

can they still do that if she wasnt cited at the scene of the accident? isnt there a formal process that has to be done for that to happen, or can they retroactively do that.

If ecmst12's comment was referring to your uninsured girlfriend it's possible that the DMV could make an administrative suspension. I don't know how that works so she'll just have to sweat it out.

Now for something completely different.

Something you wrote earlier has been bothering me:

I know that it looks bad. but she thought she was covered by her insurance. however her insurance company is one of the worst (inifinity) and she signed a document saying she was an excluded driver unknowingly, the insurance agent made it sound like she was covered. But only upon calling them to help with the claim did she find out she wasn't.

It's hard to imagine that somebody buying her own insurance on her own car would sign a document making herself excluded from coverage. Just doesn't make sense to me but I'm getting the information second hand. I suggest you have your girlfriend consult an attorney who specializes in suing agents for malpractice and insurance companies in bad faith (use google) and have that policy and documents reviewed to determine what happened and whether is some culpability on the part of the agent.

 

[FlyingRon]

It's possible that the lead car driver will sue both of the other drivers - I've known it to happen. Then what will you do?

Not only possible, but if it gets to a law suit stage it's quite probable.

 

[ecmst12]

The accident will be reported to the DMV because that's mandatory for accidents over a certain amount of damage. The insurance companies who are involved will do it if the police haven't done it already. They will find out that she was uninsured and the suspension will be issued. It's not related to her ability to claim for her damages, but my understanding is that it's a fairly automated process.

 

[davew128]

Her license will be suspended for a year as well. CA does not mess around with uninsured drivers.

I suspect she is not the owner of the vehicle but an excluded driver on the policy.

 

[Zigner]

I suspect she is not the owner of the vehicle but an excluded driver on the policy.

Right - and as such, she was an uninsured driver...

ETA: The driver will be required to provide proof that she was properly insured at the time of the accident. The DMV will verify such coverage with the insurance company. The insurance company will respond that she wasn't covered.

 

[kapeedmaro]

Thanks everyone for their responses It seems that the consensus is that this will end up in court. in that event, is there a best way to start preparing ourselves for this possibility while the other drivers are still unsure of the extent of the damages (exceeding the policy limit) as well as the possibility that they may be changing their story soon? To get a leg up on protecting ourselves before they are aware they are no longer on our side but trying to sue us instead.

also;

I suspect she is not the owner of the vehicle but an excluded driver on the policy.

can you elaborate a bit on the implications of this?
she is the co-owner of the vehicle so that answers that question, but how does this affect the other owner?
or why does it matter if she is the owner or not, how does this affect her possible license suspension (it could be i'm just interpreting what you are saying wrong)

Right - and as such, she was an uninsured driver...

ETA: The driver will be required to provide proof that she was properly insured at the time of the accident. The DMV will verify such coverage with the insurance company. The insurance company will respond that she wasn't covered.

kind of the same question, i feel i still dont fully understand the necessary criteria for the retroactive suspension of her license

 

[quincy]

I actually haven't read very carefully your thread, kapeedmaro, so if the following does not apply, I apologize - but you seem to have some questions on the possible license suspension of your girlfriend?

Because the California Department of Motor Vehicles says it better than I can, here are links to the administrative actions that can be taken against an uninsured driver, whether or not the driver was involved in an accident:

https://www.dmv.ca.gov/portal/dmv/?1dmy&urile=wcm:path:/dmv_content_en/dmv/pubs/hdbk/actions_fr

https://www.dmv.ca.gov/portal/dmv/?1dmy&urile=wcm:path:/dmv_content_en/dmv/dl/driversafety/fr_guide

 

[HighwayMan]

i feel i still dont fully understand the necessary criteria for the retroactive suspension of her license

Criterion 1: driving with no insurance.