Suing Insurers: Your Rights After A Car Accident

If you've been in a car accident, you may be wondering whether to sue the driver or the insurance company. The answer depends on several factors, including the liability laws in your state, whether the other driver has insurance, and the type of insurance coverage they carry. If you've already filed a claim with the other driver's insurance company and they're not offering a sufficient settlement, you may need to take legal action. Here's what you need to know about suing an insurance company after a car accident.

Understanding when to sue the driver or the insurance company

In the aftermath of a car accident, it is important to understand your rights and options for seeking compensation. While the first instinct may be to sue the other driver, the reality is that any financial responsibility typically falls on their insurance company. Here is what you need to know about when to sue the driver or the insurance company:

Understanding Your Rights:

Firstly, it is crucial to recognize that in most states, vehicle owners are legally required to carry a minimum level of auto insurance to cover bodily injury claims. This insurance serves as a safeguard, ensuring that individuals injured in an accident can seek compensation for their losses. The insurance company, bound by its contract, becomes financially responsible for valid claims made against their insured driver, up to the limit of the available insurance coverage.

Suing the Insurance Company:

The general rule is that you cannot directly sue the insurance company of the at-fault driver. Instead, you must file a claim with their insurer to seek compensation. This claim is made against the at-fault driver personally, and their insurance company becomes responsible for handling the claim and providing compensation, if warranted. It is important to note that the insurance company will vigorously defend their insured driver and work to reduce their financial liability.

When to Sue the Driver:

There may be instances where suing the at-fault driver directly becomes necessary. This typically arises when the driver's insurance coverage is insufficient to fully compensate you for your losses. In such cases, if the driver has assets, you may choose to sue them personally to recover the remaining amount. Additionally, if their insurance company fails to act in good faith and adequately represent their insured driver, it may be advisable to pursue legal action against the driver to protect your rights.

Understanding Negligence and Fault:

To successfully obtain compensation, whether through a claim or a lawsuit, it is essential to establish negligence and fault. This means proving that the other driver failed to exercise reasonable care while driving and that their negligence directly led to the accident and your resulting injuries. Common examples of negligence include distracted driving, speeding, driving under the influence, and aggressive driving.

Seeking Legal Assistance:

Navigating the aftermath of a car accident can be complex, and it is always advisable to consult with an experienced car accident attorney. They can assess your specific situation, guide you through the legal process, and help you determine whether to pursue a claim with the insurance company or take legal action against the driver directly. Remember, understanding your rights and options is crucial to ensuring you receive the compensation you deserve.

Determining liability and your percentage of fault

Evidence and Investigation:

• Police Report: The police will create a report by analysing the accident scene, vehicle damage, witness statements, and other relevant factors. This report is crucial for insurance companies and any potential legal proceedings.
• Insurance Company Investigation: Your insurance company will conduct its own investigation to determine fault. They will review the police report, gather evidence, and assess applicable traffic laws and regulations.
• Witness Statements and Evidence: Statements from witnesses, as well as physical evidence such as photos and videos of the accident scene, can play a crucial role in determining fault.

Types of Fault:

• Negligence: This refers to a failure to exercise reasonable care when driving. For example, texting while driving.
• Recklessness: This is a deliberate disregard for the safety of others, such as racing on the highway.
• Intentional Misconduct: This is a deliberate act that causes an accident, like running a red light.
• Strict Liability: In some cases, a driver may be automatically considered at fault, such as when hitting a pedestrian in a crosswalk.

Comparative Fault:

In some states, a comparative fault system is used. This assigns a percentage of fault to each driver involved in the accident, and damages are awarded accordingly. For example, if one driver is 75% at fault, they may be required to pay for 75% of the damages.

No-Fault States:

In a dozen or so states with no-fault insurance laws, fault may not be the central factor. In these states, individuals typically submit claims to their own insurance companies for certain financial losses, regardless of fault. However, drivers in these states still carry liability coverage and can be held liable for the other party's medical and vehicle damage.

Arbitration and Litigation:

If fault cannot be determined by the above methods, arbitration or litigation may be necessary. Arbitration involves a neutral third party deciding the percentage of fault, while litigation takes the matter to court, where a judge or jury will make the final decision.

Remember, each state has its own laws regarding fault determination, and consulting with a legal professional familiar with your state's laws is always advisable.

Knowing the negligence law in your state

When it comes to suing an insurance company after a car accident, negligence is a key legal concept. Negligence refers to careless conduct that results in harm to another person. In the context of a car accident, negligence can take the form of actions that a driver should not have done, such as running a red light or speeding, or omissions where the driver failed to do something they should have done, such as yielding to pedestrians or using turn signals.

To determine negligence, it is important to understand the negligence law in your state. Each state has its own way of attributing fault in a car accident, particularly when it comes to property damage versus bodily injury claims. Knowing your state's negligence law will empower you to advocate for yourself effectively using police reports and applicable state laws.

There are three main types of negligence laws recognized across different states:

• Pure contributory negligence: In states following this rule, the insurance company will only reimburse a driver if they are completely blameless for the accident. If the other driver can prove that you contributed even partially to the accident, you will not be eligible for any insurance payout. Only a few states follow this strict rule.
• Pure comparative negligence: This type of negligence law determines a driver's payout based on the percentage of fault attributed to them. If you are found to be 75% at fault, for instance, you can claim up to 25% of the settlement from the other driver's insurance.
• Modified comparative negligence: This approach also considers the proportion of fault assigned to each driver but sets a threshold, typically at 50% or 51%. If a driver is found to be at fault beyond this threshold, they will not be eligible for any payout.

It is worth noting that some states, like South Dakota, have their own unique systems for determining negligence, such as the "slight/gross negligence" model.

In addition to understanding the type of negligence law in your state, it is crucial to familiarize yourself with your state's motor vehicle laws. These laws outline the expected behavior of drivers on the road, and violating them can give rise to a "presumption" of negligence. Examples of behaviors that may lead to a presumption of negligence include driving under the influence of drugs or alcohol, violating right-of-way rules, and driving on the wrong side of the road.

By knowing the negligence law in your state, you can better navigate the insurance claims process and protect your rights in the event of a car accident.

Negotiating with the insurance company

Negotiating with an insurance company after an auto accident can be a challenging process. Here are some key strategies to help you navigate these negotiations and secure a fair settlement:

Know Your Claim's Value

Before entering negotiations, it is crucial to determine the value of your claim. This includes calculating expenses such as medical costs, lost wages due to an inability to work, long-term disabilities caused by the accident, pain and suffering, and the cost of repairing or replacing your vehicle and any other damaged property. Having a clear understanding of your claim's worth will enable you to set reasonable expectations and negotiate confidently.

Set a Desired Settlement Range

When negotiating with the insurance company, it is advisable to have a desired settlement amount in mind, along with a minimum settlement figure that you are willing to accept. This range should be based on the estimates you have gathered and your assessment of the claim's value. Knowing your bottom line will help you stay focused during the negotiation process.

Decline Inadequate Offers and Seek Justification

If the insurance company's initial offer is inadequate or unreasonably low, don't be afraid to decline it. Insurance adjusters often start with low offers to test the waters. Instead, ask the adjuster to justify their offer and provide specific reasons for the proposed amount. This will give you valuable insights into their valuation and help you formulate a counteroffer.

Counteroffer Strategically

After considering the adjuster's justification, you can make a counteroffer that is higher than their initial offer but still within your desired settlement range. This demonstrates your willingness to negotiate and find a compromise. Remember, the goal is to reach a settlement that is fair to both parties.

Provide Supporting Evidence

To strengthen your case, gather and present supporting evidence to the insurance company. This can include medical records, bills, repair estimates, police reports, photographs of the accident scene and injuries, and witness statements. Having solid documentation will make it harder for the insurance company to dispute your claim and increase your chances of securing a favourable settlement.

Emphasize Emotional Points

In your negotiations, focus on the strongest points in your favour. Highlight the other party's fault in the accident, the severity of your injuries, the impact on your quality of life, and any long-term consequences. Appealing to emotion can be effective in conveying the extent of your losses and the need for fair compensation.

Get Everything in Writing

Throughout the negotiation process, ensure that all communication, offers, and agreements are in writing. This includes emails, letters, and transcripts of phone calls or in-person meetings. Putting everything in writing creates a clear record of the negotiation process and protects both parties. It also helps to prevent misunderstandings and ensures that the final settlement agreement is clear and enforceable.

Consider Hiring an Attorney

If you feel overwhelmed or unsure about handling the negotiations yourself, consider hiring an experienced car accident attorney. Attorneys have the expertise to guide you through the process, protect your rights, and negotiate on your behalf. They can also help you navigate complex situations and ensure you receive the maximum compensation you deserve. Many car accident lawyers offer free initial consultations, so it is worth exploring this option.

Suing the at-fault driver

If the at-fault driver is uninsured, suing them personally may not be the best option, as they may not have the monetary resources or property to offset their liabilities. In this case, you can turn to your insurance company and use your uninsured motorist (UM/UIM) insurance coverage. This type of insurance is optional, but most drivers have it unless they opt out. However, even with UM/UIM insurance, you may not be able to cover all your expenses, so you should still consider suing the at-fault driver to reclaim damages.

If you decide to sue the at-fault driver, you should be mindful of the statute of limitations, which is the time limit for pursuing a personal injury case. In Georgia, for example, you have two years from the date of the accident to bring your case.

Before suing, you should first negotiate with the at-fault driver's insurance company. A lawyer can help you negotiate a fair settlement, and you may be able to reach an agreement without having to go to court. However, if the insurance company is not willing to give you a fair settlement, then you may need to initiate a lawsuit.

It's important to note that liability for a car accident is not always straightforward. Multiple parties may be liable, and it may be difficult to determine exactly what happened or who is at fault immediately after the crash. This is where a car accident attorney can help. They can conduct an independent investigation to uncover evidence of liability and help you determine who is at fault.

Frequently asked questions