What can I do if I was in an auto accident and the person who was at fault doesn’t want to pay and neither does his insurance?

UPDATED: Feb 17, 2012

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What can I do if I was in an auto accident and the person who was at fault doesn’t want to pay and neither does his insurance?

I was in an auto accident 2 months ago in which the other driver was fully at fault. We pursued with the help of a lawyer but his insurance refused to pay and the case went nowhere. There was bodily injury and the loss of our car. We were advised to take it to small claims court. Is this a wise and time-worthy move? And who would we sue him or his insurance?

Asked on February 17, 2012 under Accident Law, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

You never sue the insurer: you sue the person you believe to be at fault, and if he has insurance, the insurer should step in to defend and, if appropriate, pay compensation. However, regardless of whether he has insurance or what his insurance does, you sue the person you believe to be responsible for your loss or damages; and if you can prove that, you can get a judgment compelling him to pay. Assuming he has assets and/or an income, you'd have a reasonable chance to collect on the judgment, even if he tries to not pay.

Small claims court is very inexpensive--the filing fees are low, you can act as your own lawyer, etc. Cases also move relatively quickly. If you believe that you can show that the other driver is at fault (for example, from a police report as well as your own testimony), it would seem to make sense to bring a small claims suit--you risk comparetively  little. Note that in addition to proving that his fault caused the damage (that is, that he was driving carelessly), you will need to show the damage or injury done (e.g. medical bills; repair bills; etc.)

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 AttorneyPages.com 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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