If I’m taking the insurance company to small claims court, can I still cash the settlement check?

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If I’m taking the insurance company to small claims court, can I still cash the settlement check?

My car was rear-ended. The other insurance company mailed me a settlement check for $3000. I do not agree with the settlement amount and the insurance company refuses to negotiate. I plan to take the insurance company to small claims court and sue for an additional $4000 but the earliest appearance date I can get is 12 months from today. Can I cash the check before the appearance date?

Asked on April 4, 2012 under Accident Law, Texas

Answers:

DRichard White / MoKan Personal Injury Group

Answered 9 years ago | Contributor

The other insurance company did not rear end your vehicle. The damage was caused by their policy holder thus if there was anyone one that you plan to sue for the damage to your vehicle it would be the person who rear ended your vehicle. In filing a suit against the at fault party you need to make sure that you have the proper information necessary to insure that the person is properly notified of the suit you file. Unless you can give proper notice the filing of a suit would amount to nothing. With respect to the damages to your vehicle you would have to prove entitlement to the amount you are requesting. In most cases providing an average of three repair estimates would do, however, if your vehicle was a total lost i.e. your vehicle damages cost more to fix than your vehicle was worth, then you would have to prove the value of your vehicle. Unless you can prove the damage repair was more than $3000 or in the case of a total loss your vehicle was worth more than $3000 then again filing suit would be pointless. However, if you can prove you are entitled to more than $3000 and you can insure that you will get proper notice to the person being sued AND [1] the check does not have any indication that it is being submitted as payment in full of your claim, [2] you have not signed any papers stating that you are releasing the at fault party, the insurance company, whoever from any further claim, [3] there was nothing stated in writing that cashing the check bars you from furthering your claim and [4] there are no state laws that provide that cashing the check ends you right to seek more THEN you can cash the check but you do so at the risk that a judge may find that doing so was your in action agreement to the amount offered. There are too many things that could bar your claim for addition money if you cash the check thus to be on the safe side it would be best that you do not cash the check and that you return it to the insurance company if you plan to seek legal means to obtain a higher settlement figure.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

They are offering you $3,000 to settle your claim--i.e. as payment in full of your claim against them and their insured. If you cash the check, you will most likely be considered to have, by that act, accepted their offer of $3,000 as payment in full, which would then preclude you from suing for more, later. You can't have it both ways--you can take their money now; or you can wait and sue for the larger amount you believe you are entitled too--but you can't take their settlement offer then sue them.


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