Can I sue the person responsible for totaling my car?

UPDATED: Sep 30, 2022

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Can I sue the person responsible for totaling my car?

We were rear-ended before Christmas by a girl with a provisional license. The insurance company is claiming our car is a total loss and the market value is less than what we owe. We do have gap insurance to cover the difference but we do not have money to buy a new car. This is my family’s only working vehicle and we live paycheck to paycheck. It is an enormous financial burden to have to buy a new vehicle. Can we sue her for a down payment on a new car or something similiar?

Asked on January 22, 2016 under Accident Law, Oregon


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 7 years ago | Contributor

You are only entitled, in a lawsuit, to the then-current fair market value (blue book value) of the car, not the cost to buy a new vehicle; and if you are paid that amount by insurance, you can't also get it from the out-fault driver. So if the insurer is paying  you the totaled value of your car, you are already gettng as much as you can get; once you are paid the value of the destroyed property, you can't sue to basically make somebody else, even an at-fault person, buy you a new car.

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