Legal Question in Personal Injury in California

Confused by Settlement Options or Lack of.

My son was rearended while backing out of a driveway. The accident report sites the other drive at fault. The ''at fault'' determination was made based upon the other driver's admission to going 10 miles in excess of the posted speed, 2 witness statements, and physical evidence. The accident report is very clear to his fault, yet his insurance company is willing to pay for only 50% (down from an earlier offer of 75%). The truck my son was driving had only the minimum inurance required by law. We do not wany anything thing other than the truck fixed with no out of pocket expense. We are told the only way to achieve that is through small claims court. Do we sue beforehand for the entire amount or after for 50%?? And... do we need legal representation? Or can we handle this on our own? How can we best be prepared for small claims court? Based upon the accident report, it seems so cut and dry. Why does it have to be so complicated? Please help, any advice will be greatly appreciated.

Asked on 9/18/06, 6:09 pm

2 Answers from Attorneys

Jonathan Stein Law Offices of Jonathan G. Stein

Re: Confused by Settlement Options or Lack of.

You would want to file suit before you take any money from the insurance company. The insurance company will only pay you if you sign a release. Do not sign a release if you want more money. You also will want to have signed declarations, under penalty of perjury, from the witnesses confirming what was in the police report.

You can read more about this at my blog,

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Answered on 9/26/06, 4:51 pm
Edward Hoffman Law Offices of Edward A. Hoffman

Re: Confused by Settlement Options or Lack of.

The police officer's assignment of fault is not binding on anyone else, and the other driver's insurance company can disagree with it.

If you settle with the insurer it will insist that you sign a form releasing the other driver from any further liability. You would then be unable to proceed against him in court.

Small claims court has a jurisdictional limit of $7,500. Are you sure that will be enough for your son's medical costs (including future costs), his pain & suffering and any damage to the vehicle?

Keep in mind that, if your medical insurance paid any of his bills it will likely want to be reimbursed from the proceeds of any lawsuit. If the bills were $10,000 and the insurer paid $9,000 of it, that portion of your loss is still the full $10,000.

If you do go to small claims court, you will not be allowed to bring a lawyer with you. You can consult with one ahead of time, though, and I urge you to do so. He or she may also be able to accomplish quite a bit with a demand letter.

If you decide to sue without first seeing a lawyer, keep in mind that the defendant will be the other driver (possibly along with others) and not his insurance company. Also, the amount of your damages would be the entire amount of the economic loss plus the value of pain and suffering. There may be other recoverable items too.

Finally, bear in mind that the other driver has policy limits and his insurer will not pay more than those limits. Trying to get more out of the driver might be much more difficult. Hopefully the policy limits will be adequate.

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Answered on 9/26/06, 5:20 pm

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