Who do I sue in small claims over a car accident – the other driver or the other driver and their car insurer?

Another driver ran a red light and I struck his vehicle. This caused my car to be total loss. I do not agree with the insurance companies liability assessment which is giving me 80% of value. I want to file small claims suit but I am not sure if I only list other driver or other driver and his insurance company. I only had liability on my car so I can’t get difference from my company.

Asked on July 21, 2010 under Accident Law, Wisconsin


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Regardless of whether it's small claims court, municipal court, county court, state court, etc. you sue the at-fault driver, not the insurer. That is, you sue the person which you believe is liable or responsible for  your damages. The insurer is not actually liable for your losses; if there is insurance, the insurer will have a contractual obligation to defend their insured and pay for any judgment against him, at least up to the policy limits. So you sue the driver (and don't forget  the ownner of the car, if it's not the same person--you may be able to sue the owner as well) and the insurer will then step in to pay for his legal defense and, if any money is owed, to make payment on behalf of their insured.

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