Expert: Ron Cercone - 3/1/2009

Question
I was side-swiped by another vehicle on the freeway. There were no personal injuries to either. My vehicle's (Toyota pick-up)left tail-light assembly and side-panel were damaged and there is a black smear on the side door and front side fencer. I have photos showing no damage to my left front fender.

The other vehicle showed damage to the front of the right rear fender which sticks out (large Toyota SUV)and some horizontal scrape marks to the right rear door  just in front of it.

Since I do not have collision ins, my company will not pursue this and suggested I go to small claims court. Two questions, first, the person driving is not the person on the insurance. Should I sue the driver only or also the insured.
Second, what problems obstacles might come up in court or as the case works out that would negate my claims or create problems, if that is not an impossible question?

Damage to my vehicle was only $900, but I have a very limited income.
Her company refused to pay me saying I changed lanes without signaling and ran into her door. I say the only thing that hit her door was my left rear which she caught with the front of her right rear fender as she passed me.

Answer
Dorothy,

I'm no expert on liability, but I will give you my view anyway. I think both insurers see this as not enough clear physical proof of fault to prevail in court. That's why they are both not paying. Its your word against the other drivers word, and the damage to the middle and side rear of each vehicle don't show who got out of whose lane. Unless you can get an accident reconstruction expert to state who is at fault, its your word against the other driver. Ask your adjuster who they use for auto accident reconstruction in your area and price it out.

Does the police report say who was more at fault? Ask your your and the other drivers insurance for a written letter of their position.

If you go to small claims court, know that the other driver could file a "cross complaint" against you and if the judge rules against you, then you owe your own damages and the other drivers damage.

If you do sue, name both the driver and the vehicle owner and let the judge decide who pays what. And get good pictures of your car and the other drivers car. Ask the adjusters of both companies for their pictures if they took them and their investigation report. If they refuse, do a "subpoena" to get them. Its easy, you just ask the court clerk for the form to fill out.

If you have witnesses, bring them to court. How does the other insurer know you did not signal, their insured's statement?