How do I sue and who?

I was stopped at a light and a driver was coming in the opposite direction driving too fast. Their car spun around 180 degrees and slammed into my 2 year old car on the driver’s side. The damage was over 10k and was fixed very well. I told my insurer and theirs, that I wanted to pursue a diminished value claim. After months, they came to me with $1900. The cars value had diminished over 5k because there was minor frame damage. I had it appraised. They’re sum, includes my $500 deductable and my rental car which together came to $1152. This to be is unacceptable because I had zero fault in the accident. I told them that I would take it to court. How would I go about this and who do I sue? What happens when I sue? And what happens if I win in court? I’m assuming small claims. They also told me they agreed with the 6k I was looking for, however they have limits on the policy and can’t go beyond that number.

Asked on March 28, 2018 under Accident Law, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

You sue the other *driver*, not either insurer, for a diminished value claim: your own insurer (if you had the relevant insurance; e.g. collision coverage) only has to repair your car, not pay for diminished value; and their insurer has no obligation directly to you, only to their insurered (to defend him in court; to pay court-ordered judgments against him)--that is, the other driver's insurer may choose voluntarily to make payments sometimes, if it feels that is most efficient, but only *must* pay if you sue their driver and win in court, in which case they have to pay up to the limit on their policy. So if they don't voluntarily offer you what you want, you have to sue the driver.
To win, you'd have to prove in court 1) he was at fault; and 2) the extent of the reduction in value. Some things to be aware of:
A) You need expert testimony (live testimony in court) to prove the reduction in value, such as from an auto appraiser who examined your car; you cannot rely on documents, reports, etc. without having a live person in court to introduce, authenticate, explain, etc. them. (The rules of evidence do not let you put in documentation without a person supporting it in court.) You'd have to pay this person for his/her time and cannot recover that amount from the other side, so this will offset what you hope to get.
B) The insurer only has to pay up to it policy limit. If he has low-limit insurance, the insurer may not have to pay some or all--and then you'd have to try to collect directly from him, which can be difficult if he is insolvent, unemployed, or simply refuses to pay and forces you to spend more time and money on collections (e.g. on seeking wage garnishment).

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