Accident NOT MY FAULT, car totaled, insurance paying less than I owe on car. Can I sue the other driver for money lost?

UPDATED: Apr 4, 2009

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Accident NOT MY FAULT, car totaled, insurance paying less than I owe on car. Can I sue the other driver for money lost?

I have to pay $700 out of pocket just to “break even” on my totaled car. The accident was 100% the other driver’s fault (she was driving the wrong way down a one way and tried to turn into a gas station in front of three lanes of oncoming traffic). I slammed on my brakes but couldn’t avoid her. Can I take her to small claims court and make her pay for the $700 I’m losing, since it was her fault? Do I have a case?

Asked on April 4, 2009 under Accident Law, New York


FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 13 years ago | Contributor

The value of your car at the time of the accident is the maximum you can recover, assuming there was no personal injury you sustained. That you were underwater by $700 is irrelevant. The car was worth no more than its fair market value, and in these days of depressed car prices that's a common occurrence.

If you have collision, your insurance company will pay you for the car and take its title to the car, sell it for salvage (parts) and also gets your rights to sue the other driver or its insurance company for the property damage; you thus could not sue the other driver for the $700. If the other driver's company is paying the value of the car it usually will demand a release that prohibits you from suing their driver for the property damage after you take the payment for the car.

If there was real personal injury, see a personal injury lawyer.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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