A friend in my building was in a fender bender. Pretty minor. He told me when it happened that he thought the guy hit him. Evidently the other guy thinks it was my friend’s fault. No surprise. Happens every day. My friend just chalked this up to one of those things that happened. My friend’s car will cost about $1,800 to be fixed. The other car about $1,500. My friend was putting this behind him and accepting that he’d have to pay his own $500 deductible. Both insurance companies were notified and his is paying to get his car fixed.
But now the other guy is taking him to small claims court. I told him I didn’t think he could do that. (Particularly for the issue in #2 below.) So, two questions:
Don’t the insurance companies take care of this between themselves?
If not, wouldn’t the amount my friend can be sued for be just the other guy’s deductible? As it is, he’s suing him for the complete amount of the repair—the $1,500. Is this kosher?
Now my friend feels he has to counter sue the other guy, blah, blah, blah.
What say those in the know? Any other input is much appreciated.
#2 All the other party is legally entitled to is any part of the loss not already reimbursed by insurance.
Have your friend look at his auto insurance policy in the section call subrogation.
Or read Wiki Basically when an insurance company reimburses you, you give up the right to recover that money from anyone else. That right then belongs to the insurance company. For a grand they won’t bother.
Will do. Is it possible that this guy declined to have his insurance pay for the repair? Even after the two insurance companies took both their statements, and cut my friend a check? Can someone choose to gamble like that. I remember seeing Judge Judy (:eek:) episode once where even though the car hadn’t been fixed yet, one guy had insurance and she just gave him the deductible.
Why not have your friend simply report this suit to his insurance company and take advantage of his liability coverage and let the insurance company defend him?
Yeah, he should tell the insurance company. I once caused very a minor fender-bender and the person I hit kept making noise about small claims court. Both of us had car insurance. I never heard anything about that directly from the person; my insurance company kept me informed about when they were contacted by a lawyer. Finally it seemed like they lost interest in doing anything, and the rep from my company said that if I did hear anything directly in the future, I was to call them right away and they’d get their lawyers on it.
Your friend needs to notify his insurance company. The insurance company will defend the suit. Since the insurance company is the one who will pay, they have an interest in defending the suit.
Ah, guys we are talking small claims court. NO lawyers. Yes the insurance company owes the insured the right of defense, but you can’t take a lawyer into small claims court.
I agree he should inform his insurance company, but trust me they won’t be sending a lawyer to defend him in small claims court.
The hell you can’t You can have representation in ANY US court, or none. Small claims is set up and intended to be do it yourself, but it doesn’t have to be DIY.
I’m am guessing you have never been in a small claims court when a lawyer showed up.
I have. It was fun to watch.
There were two lawyers that worked for the company that was being sued.
the judge spanked the lawyers for several minutes (You know damn well you cannot represent your company here)
The lawyers protested that they were not the firm’s legal counsel.
the judge said Bullshit, if that were the case then every company would hire one lawyer and say that he was not legal counsel, he has other duties, and send him to small claims court.
The judge went on to say the only time you can be facing a lawyer in court is if you are suing a firm of lawyers, where the firm has no one to send but lawyers.
If you don’t believe me, maybe the FAQs from the California courts might convince you
This is incorrect or not wholly accurate. It’s called the collateral source rule.
In sum, the other driver would be entitled to claim the entire amount of damage from you. The fact that the other driver was paid by his own insurance is irrelevant and inadmissible in court. It has no bearing on how much the other guy can claim against you. The fact that someone has insurance does not stop someone from claiming the full amount against the other party.
This guy’s insurance policy probably has some provision in it that says any amount he recovers in the lawsuit is due and payable to his own insurance company to reimburse whatever amount was expended by the insurance company to pay him. If he recovers from you more than whatever his own insurance paid out to him, then he gets to keep the difference. If he recovers less than the amount his insurance paid out, then his own insurance company has the right to claim the entire recovery. If he recovers from you the full amount his insurance company paid out, he has the right to call his insurance company and negotiate that the insurance company reduce or waive its claim for reimbursement from the recovery. If his own insurance policy has no recovery provision in it or if his insurance company does not know or does not care that he got some recovery from you via lawsuit, then he gets to keep BOTH the insurance payout AND whatever amount he recovers from you … double recovery for him.
On the flip side, you can countersue the other guy for the full amount of your own damage regardless of any insurance payout to you or on your behalf by your own insurance company.
This is incorrect. There is no right to an attorney in California small claims court. A company may send an attorney to represent it in small claims court, but only if the attorney is an officer, director, or managing agent of the company… not just some employee staff attorney.
I believe California is an oddball in not allowing attorneys in small claims, though (and it’s a horribly unjust rule, imo, so I’m glad it hasn’t spread).
Certainly here in Illinois it is neither prohibited nor unusual to have an attorney in small claims.
The goal, I believe, is the keep the stakes low in small claims court. You don’t want people to hire attorneys in small matters out of fear that the other guy might have an attorney.
Also, oddly, attorneys are permitted in California for small claims appeals (superior court bench trial de novo) even though no attorneys were permitted in the initial small claims trial.
Horribly unjust? Having a level playing field is horribly unjust? You have a strange sense of justice.
Small claims is designed to be a low cost, informal way of settling disputes.
Once you add lawyers into the mix, both low cost and informal go right out the window.
Correction: Regardless of how much the other guy wins from you, if there is a reimbursement provision in his own insurance policy, then he has the right to call his insurance company and negotiate that the insurance company reduce or waive its claim for reimbursement from the recovery.
If his own insurance company paid out $1,500 to fix his own car, he can still sue you for not only the $1,500, but also pain & suffering and anything else. Let’s say he wins a judgment against you for $2,500.
If there is a reimbursement provision then he can contact his own insurance company. His insurance can reduce or waive its claim on the money recovered from you.
Let’s say his insurance company would be happy with recovering only $500 out of the recovery. So, the other guy gets to keep the initial $1,500 insurance benefit but he has to pay his insurance company $500 from his recovery from you. That leaves a net insurance benefit to him of $1,000. He also got a net benefit from you of $2,000. So he gets a net win of $3,000.
If there is no reimbursement provision in his policy or if his insurance company doesn’t care about reimbursement, then he gets to keep the $1,500 insurance benefit plus the full $2,500 recovery from you. Net win for him: $4,000.
Well, I don’t want to venture into GD territory, but yes, I think denying someone the assistance of counsel in any court proceeding is unjust. Small claims can easily be big enough to have a profound impact on someone’s life and financial health–to deny that person access to an attorney is wrong.
The other 49 states that allow attorneys in small claims don’t have a problem with maintaining a low cost, informal approach to small claims. California’s rule is a solution in search of a problem, while creating problems of its own.
The thing about the California rule is that people hire attorneys for small claims matters to set the case up for trial. The attorney can do all kinds of trial prep work. The only limitation is the attorney can’t appear at the hearing.
So, the California rule doesn’t really keep attorneys completely out of small claims cases … it just keeps them out of the courtroom. A party can hire an attorney to do all kinds of pretrial work and stack the deck that way.
Also, if the defendant wants an attorney but can’t have one due to the California rule, then all the defendant needs to do is not show up for the small claims hearing, lose the case by no-show, and then file an appeal. Attorneys are allowed on appeal. The losing defendant has the right to appeal but the losing plaintiff has no right to appeal.
I’m kind of surprised by all this - didn’t anyone call the cops at the time of the accident? In IL, it’s a requirement for accidents above a certain degree of severity to be reported (details here), and the degree is pretty low; most fender benders are covered, even if there are no injuries.
I was in a fender bender last December, and the cops said it’s generally clear from the report to anyone who sees the things on a regular basis whose fault the accident was. In my case, the other driver was clearly at fault (she whipped out of an alley and hit me head-on, though she had plenty of time to stop because of the low speed we were both traveling). Nobody was injured, and damage to my car ran about $2400 (it’s amazing how much it costs to replace a bumper these days), but because it was her fault and she was unlicensed, she was taken away in handcuffs.
Accidents causing over $500 in damage must be reported to DMV. No cops necessary. Some police forces don’t have resources to respond to fender benders.
My friend actually called the cops, but was told that since there was no bodily injury, they wouldn’t come. I had the same thing happen in a little accident about six years ago.