QUESTION
Can I sue the driver for the loss over the limit?
Asked on Nov 26th, 2013 on Personal Injury - California
More details to this question:
A drunk driver crushed into our garage. Our homeowners' insurance covered all of the damages to our house and personal assets except the damages to our car that was in the garage. We didn't put collision coverage on the car, so our insurance company is not doing anything for us. We found out that the drunk driver only had 10k limit on liability. Our car is totaled, and the house repair took 30k. As I understand it, we will most likely receive a pro rata share of 10k limit for our car. My question is this: can we sue the drunk driver for the remaining balance of the loss (replacement cost of our totaled car + loss of use - pro rata portion)?
12 ANSWERS
Ronald A. Steinberg
The short answer is YES, as long as you do not sign a Release with the drunk's insurance because if you do, you will allow him to escape personal responsibility. Why is it that the biggest jerks in the world carry little or no insurance to cover the results of their being jerks?
Answered on Dec 02nd, 2013 at 5:57 PM
Edwin K. Niles
Sure, but before going to that expense you should do an asset check. If he has nothing (likely with a drunk with a minimum policy) you may be wasting your money.
Answered on Dec 02nd, 2013 at 5:57 PM
NA richard@jandjlaw.com
Can you sue? Sure. Can you collect a Judgment against the guy over and above his insurance coverage? Very problematic. Whey is your car and / or home insurance not available to pick up the slack?
Answered on Dec 02nd, 2013 at 5:57 PM
You have to look at your insurance policy to see what the subrogation rights are. I would guess that you can go after the driver for the full amount of your car damage and loss of use. You would be collecting for a damage not covered by the insurance payment so there would be no right of reimbursement. Subrogation applies only against the third party and the insurance company can not in essence go after you by claiming any part of the amount of your car damage. You need to check if the damage to the vehicle is really excluded from the homeowner's coverage (would have to state directly that it is).
Answered on Dec 02nd, 2013 at 5:54 PM
James Eugene Hasser
Sure, if you don't release him when you accept payment, but how will you collect? Your best bet would be to request that the judge require restitution in any sentence imposed.
Answered on Dec 02nd, 2013 at 5:53 PM
Automobile Negligence Attorney serving Orlando, FL
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Kelaher Law Offices, P.A.
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Probably not the guy's insurance company will require you to sign a release when they pay you whatever they're going to pay you but remember, the "property damage" coverage on his policy is different than the bodily injury coverage.
Answered on Dec 02nd, 2013 at 5:52 PM
Criminal Defense Attorney serving Anderson, SC
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The David F. Stoddard Law Firm
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You can. However, if you win, you will get a judgment that may be uncollectable.
Answered on Dec 02nd, 2013 at 5:43 PM
Litigation Attorney serving San Antonio, TX
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Graves Law Firm
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Yes, but only if you haven't signed a release of the drunk driver's liability when his insurer pays out the $10K limit of his liability coverage. The insurer may not pay without a release for its insured, and either way you should be wise about pouring money into a lawsuit against a drunk driver who may have nothing you can take from him. But you may have first dibs on the $10K liability insurance coverage, because your own insurer's subrogation interest may take a back seat to your right to be made whole. Much depends on the law of your jurisdiction. You need a lawyer.
Answered on Dec 02nd, 2013 at 5:42 PM
Personal Injury Attorney serving Kent, WA
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Law Offices of Wayne J. Wimer, Inc. P.S.
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You are entitled to recover the full extent of your losses from the defendant. But be careful in signing any releases whereby the defendant is released of further liability. Since your insurance company is dealing with his insurance company, you may have a conflict of interest with your own insurance company, i.e. they will want all of his $10,000 liability insurance to offset against their cost of repairing your house, leaving you nothing for the auto damage, or they may propose to pro-rate the house damage against the auto damage which will leave you short of recovery on your auto. The defendant's insurance company will want a complete release from you/and your insurance company so you have to know what you are doing.
Answered on Dec 02nd, 2013 at 5:18 PM
Personal Injury Attorney serving Charlotte, NC
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Paul Whitfield and Associates P.A.
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You cant take money from his company and sue him. Do one or the other.
Answered on Nov 27th, 2013 at 5:40 PM
Personal Injury Attorney serving Pasadena, CA
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Law Offices of Pius Joseph
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You can only get the limits from the insurance company unless you sue the drunk driver. Check if the drunk has assets or money and you can even collect punitive damages. Of course there is cost attached to this process.
Answered on Nov 27th, 2013 at 5:39 PM
Appellate Attorney serving Grosse Pointe Farms, MI
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Musilli Brennan Associates, PLLC
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Yes, but be careful as to any "settlement" or agreement you sign as such could adversely affect your rights. See an attorney before signing or agreeing.
Answered on Nov 27th, 2013 at 5:39 PM