After being hurt in auto accident and missing work for 2 months, can I go to mall claims court and ask for pain and suffering plus missed work time from the uninsured driver?

UPDATED: Mar 14, 2013

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After being hurt in auto accident and missing work for 2 months, can I go to mall claims court and ask for pain and suffering plus missed work time from the uninsured driver?

Asked on March 14, 2013 under Personal Injury, Wisconsin


S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

You don't want to go to Small Claims Court because that will limit the amount of compensation you recover to the maximum allowable in Small Claims Court.

If you have uninsured motorist coverage on your auto insurance policy, you can file an uninsured motorist claim with your insurance company to recover compensation for the property damage and personal injury.  The personal injury claim is separate from the property damage.  When you complete your medical treatment and are released by the doctor or are declared by the doctor to be permanent and stationary which means having reached a point in your treatment where no further improvement is anticipated, obtain your medical bills, medical reports, and documentation of wage loss.  Your uninsured motorist personal injury claim filed with your insurance carrier should include these items.  Compensation for the medical bills is straight reimbursement.  The medical reports will document the nature and extent of your injury and will be used to determine compensation for pain and suffering, which is an amount in addition to the medical bills.  Compensation for wage loss is straight reimbursement.  If the uninsured motorist claim is settled with your insurance carrier, NO lawsuit is filed by you; however, your insurance carrier will sue the uninsured motorist to recover what it paid on the claim.

If you are dissatisfied with settlement offers from your insurance company on the uninsured motorist claim, reject the settlement offers and file a lawsuit against the uninsured motorist for negligence.  File your lawsuit in Superior Court (your state may have a different name for Superior Court).  If you don't have uninsured motorist coverage on your auto insurance policy, your only recoure is to sue the uninsured motorist for negligence.  If the uninsured driver is not the registered owner of the vehicle, the registered owner may have insurance and you could have filed your personal injury claim and property damage claim with the registered owner's insurance carrier instead of having pursued an uninsured motorist claim.  If the registered owner does not have insurance and is someone other than the at-fault driver, name both the registered owner and at-fault driver as defendants in your lawsuit for negligence.  After you get a judgment against the at-fault party, obtain a wage garnishment to enforce the judgment.

It would be premature to settle the case prior to completing your medical treatment or being declared permanent and stationary by the doctor.

If the case is NOT settled, you must file your lawsuit for negligence prior to the expiration of the applicable statute of limitations or you will lose your rights forever in the matter.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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