Expert: Claims Guy - 1/31/2009

Question
I was rear-ended recently.  After I was hit, the other driver pulled away from the scene, so when the cops arrived, I was still in position of where I got hit, but he had pulled over (neither of us was blocking traffic, but I think he knew it looked bad for him, so he sped away).  The cop who came to the scene then said that he had no idea who was at fault (since the other driver was no longer where he was when he hit me), so no one got a ticket.  It was never disputed that he hit me.  The other driver gave conflicting statements in the police report, and also gave a false address in the police report.  His insurance company took photos of my car two days after the accident, and their appraiser took it upon himself to try and "adjust" my smashed bumper, so the car no longer looks like the original damage (but he did take photos before he tried to "fix it").  Ultimately, the other drivers insurance company denied the claim, on the basis that the other driver "said" I cut him off.  I explained to them that he can claim what he likes, but there is not a shred of evidence that supports this is what happened, and that they already know he is lying, since he gave dipole versions in the police report.  There were no witnesses, so it is a he said, she said, but again, with him giving conflicting statements at the scene, clearly he is lying.  Additionally, his insurance company, even after 3.5 weeks post-accident, never took pics of his vehicle, so there is no evidence of where or how he even hit my car.  He never filed a claim against me or my insurance company.  

My question is quite simply - what is my recourse at this time to get my car fixed?  I have an excellent insurance company, but right now, the damages are estimated to be below my deductible, so my insurance company will not get involved.  Of course, once I take the car in for repairs, the damages could be higher, and they will end up fighting this for me, but that's not a guarantee.

I'd like to get my car fixed, and since it is so cut and dry that this guy was at fault, Im not sure if I should hire a private attorney or what.  I had no physical injuries, but the stress has been overwhelming, and now I am being treated for depression and anxiety, and am having great difficulties with driving, as I am so afraid of getting hit again, and also it is affecting my ability to work.

Thanks for your help.

Answer
My suggestion is that you pay to have the car repaired.  If the damages exceed your deductible, your insurer will pay and subrogate against the other driver's insurer.  They will try to collect your deductible back.  The case will likely go to inter-company arbitration because of the dispute.

If the damage does not exceed your deductible, your only option is to sue the other driver.  The other insurer will defend him.  Because the damages are so small, it is probably not worth the cost of hiring an attorney.  Your best option is likely to handle the case on your own in small claims court, which is fairly informal and you appear well educated enough to handle it.  The other insurer may decide to just pay you to avoid the cost of defending the suit.

Unfortunately, this is not an uncommon occurrence.  People often lie after an accident.  And there does not appear to be any clear evidence supporting one side over the other, so I would not say the other insurer did anything wrong.  Their primary obligation is to defend their insured and only pay a third party (you) if there is compelling evidence that their insured is liable for your damages.