If my family of 6 was T-boned in a car accident, is the only compensation we receive via insurance?

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If my family of 6 was T-boned in a car accident, is the only compensation we receive via insurance?

Other driver ran a stop sign and spun us 180 degrees. She’s had cataract surgery on the Friday before; the accident was on a Wednesday night. Not sure if she should have been driving. The car has been totaled and our loan paid off by her insurer who took full responsibility for the accident. However, we don’t have the money to get a replacement car as we are having financial difficulties. I recently filed bankruptcy and my husband is settling his credit cards so we have no credit. My daughter has a concussion and sprained neck. I sprained my neck, lower back, and ankle. Is there no way to personally sue her to get a new car? What about compnesation for our injuries?

Asked on April 23, 2012 under Accident Law, New York

Answers:

Thomas Reilly / Albert W Chianese & Associates

Answered 9 years ago | Contributor

 

You accepted payment for your vehicle and can not recover anything else for the loss of the vehicle.  In New York your injuries must meet a minimum threshold to have a successful lawsuit. Sprains generally do not reach that threshold.  If your daughter has more damage than a concussion she may have a case.  Make sure you receive treatment and that any injuries are documented. Your medical cost and lost wages should be covered by the No-fault portion of your auto insurance.  The fact that you filed bankruptcy will interfere with your ability to participate in the lawsuit.  The bankruptcy trustee would be substituted as the plaintiff and would control the settlement of the lawsuit.  Even if this matter is settled after your bankruptcy is completed the trustee can still come after you for the money you receive from that lawsuit.

 

Barry J. Simon / The Law Office of Barry J. Simon

Answered 9 years ago | Contributor

You can't sue for your car once you settled that claim. You can pursue injury claims with the carrier and depending upon the seriousness of them, you may need a lawyer. Liability seems clear against the at fault driver but if you wish to pursue your injury claims (and your daughter's) you need to seek treatment for them. I would at least consult with a personal injury lawyer.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Yes, if you believe the other driver was at fault in causing your injuries--for example, she was negligent, or unreasonably careless, in driving shortly after cataract surgery and/or in running a stop sign--you could sue her for your medical costs, lost wages, and possibly pain and suffering. The only reason you might not be able to sue her would be if in accepting the payment from her insurer, you signed a release, waiver, or settlement giving up your right to sue for any compensation, including for personal injury. However, so long as you have not given up this right, the fact that you were compensated for property damage does not preclude you from suing for personal injury. You should consult with a personal injury lawyer about the situation; bring with you all documents, payments, correspondence, etc. from the other driver's insurer or in connection with this accident, as well as information about your injuries and medical costs and any police report(s).


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