What to do if I was hit in the rear and the at-fault driver’s insurance has a $15,000. cap which does not cover the remainder of my medical expenses?

May I take this person to small claims court to recover my medical expenses deducted from my share of the $15,000? The attorney collect their fee. Insurance companies will deduct their fee. May I be re-imbursed for my medical expenses? I am still under doctor’s care.

Asked on June 11, 2012 under Accident Law, Louisiana


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

An at-fault driver's policy limits do not limit what you can recover--they simply limit how much the insurer has to pay out. You may sue the at-fault driver for any losses, costs, or injuries (e.g. medical expenses; lost wages; property [car] damage; possibly pain and suffering) which you have, regardless of his or her insurance; assuming you win, the amounts you have been paid by insurance would be an offset against what you could recover. So say your total injuries and costs are $30k; if you've been paid $15k, you could recover the other $15k.

Bear in mind that if the at-fault driver has little income or assets, even if  you win, you may not be able to recover much, or all--and someone with low policy limits may not have much else. You should factor in the likelihood of being paid into making a decision as to what to do.

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