Can I recoup repairs if the insurance company of the other driver only claims 50% of fault?

Asked over 1 year ago - Richmond, CA

I was in an accident which the other driver took full responsibility then reversed her testimony to her insurance agent. At the scene she was quoted saying- "Oh my god, I'm so sorry. That was all my fault." She then went on saying she was "new to the area and this route to work," then said she "was tired and late for work." She totally changed her story projecting what she stated onto me. If I take a check from her insurance does that forfeit my small claims right to recoup payment for repair around $5k? Can I also get pain and suffering from the back pain I received but didn't visit a doctor? I did talked to a nurse and chiropractor a few days after the accident while on vacation in Maui where the pain was intense. Both said the accident was the cause — physical trauma & emotional stress.

Attorney answers (9)

  1. Lisa Marie Blasser

    Contributor Level 10

    11

    Lawyers agree

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    Answered . Be careful to accept "a check" before confirming the nature and purpose of the check. Is it for property damage only? Is it for your personal injury claims? Or both? Either way, the other driver's insurance company should send a document called a "release" that accompanies the check, which will typically state the nature of the check. If the check and accompanying release is to settle "all claims arising from the accident" and you feel your case is worth more than $5,000 (property, medical bills, pain and suffering and other damages you are legally entitled to if the other driver is at fault) don't accept the check and don't sign the release. You really should consider getting a lawyer to help you determine what the nature of the check and what the value of your case is to know if you are in a position to settle. Best of luck, hang in there.

    The above information does not constitute legal advice and does not form the basis for an attorney-client relationship.
  2. Christian K. Lassen II

    Pro

    Contributor Level 20

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    Answered . Don't cash the check, and don't sign anything, especially not a release. Don't give any statements about your injuries. Since you were injured, you would want to retain a local personal injury lawyer to investigate a claim.

  3. David Lee Fiol

    Contributor Level 17

    9

    Lawyers agree

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    Answered . If you cash the check for the damage to your car you will probably give up your rights to sue the other driver for the difference, so I would suggest you not do that. If you have your own collision coverage I would suggest you use that to get your car fixed - you can still sue the other driver for the deductible. As for your bodily injuries, you should talk to a local lawyer about taking on your case - you will do much better than if you made the claim on your own. It is helpful but not necessary for you to go to a doctor immediately. Best of luck.

  4. Jacob Adam Regar

    Contributor Level 16

    7

    Lawyers agree

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    Answered . There are some important additional facts that would be helpful in reaching a meaningful answer to your question.

    Do you have liability insurance? If so, you are entitled to recover general damages ("pain and suffering") in addition to your economic damages (e.g., property damage to your vehicle).

    Was a police report generated? If so, who was found to be the cause of the accident in the report. While police reports are almost always inadmissible in court, they do carry weight in the insurance claim stage.

    When did the accident occur? You have 2-years from the date of the accident to file a lawsuit for your personal injuries. That is the applicable statute of limitations in CA.

    If you have insurance, do you have collision coverage? If so, have you reported the accident to your carrier? Even if you have a deductible, your insurer will usually waive the amount if they believe you were not at fault. They can recoup this amount from the at-fault driver's insurer.

    Whether and to what extent you release your claims against the other driver by accepting and cashing a settlement check from the other driver's insurer depends on the language contained in the accompanying release.

    If you are injured, you should continue to seek necessary treatment.

    Because you claim that you did suffer injury, you are required to file an SR 1 form with the DMV within 10-days after the accident, notifying them of the accident.

    You should contact a personal injury attorney in your area for consultation. Most personal injury attorneys offer free consultations.

    In case you didn't know, you can sue a negligent driver for your bodily injuries in small claims court for up to $7,500 if they have an insurance policy that includes a duty to defend. However, personal injury attorneys have a lot of experience in these matters and they are in the best position to assess the relative strengths and weaknesses of an accident victim's claim.

    Best of luck in this matter.

    No attorney-client relationship is created through the exchange of information on Avvo.com. The information... more
  5. Olga V. Blotnis

    Contributor Level 13

    7

    Lawyers agree

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    Answered . Your question raises numerous issues that cannot be answered so easily. There are always exceptions and little details. In general, it is possible to take the funds from the insurance company for the undisputed amount for property damage and recover the rest lately. However, doing it on your own- it is highly unlikely, because insurance company would want a release of claims from you. If you have collision coverage, then best bet would be to go through your own carrier. Also, it is highly unlikely to recover any significant amount for pain and suffering if you have not received any treatment i.e. there is no evidence that you had pain and suffering. Invest time and may be some money into consulting a personal injury attorney. It will be worth it.

    This answer is provided for informational purposes only and does not constitute legal advice. You should not take... more
  6. Matthew C Simon

    Pro

    Contributor Level 18

    7

    Lawyers agree

    Answered . I agree with my colleagues. Immediately retain a personal injury attorney.

    The above is general information only and is not legal advice. The information provided does not form an attorney-... more
  7. Paul J Molinaro

    Pro

    Contributor Level 18

    5

    Lawyers agree

    Answered . No one should handle any claim (involving a motor vehicle accident with bodily injury) against any insurance company without a lawyer. Claims should be handled by a lawyer - one who will be able to understand and explain the physical damages and injuries from accident. The victim of a car accident really needs to worry about one thing - getting better. That means attending doctor's appointments, attending physical therapy (if appropriate), and taking his or her medication. All of the rest can be handled by a personal injury attorney. We earn our fees (contingent by the way) by taking on the stress and hassle of fighting for money - I dare say some of us actually enjoy the fight, but I realize that most people do not enjoy conflict.

    With regard to physical injuries, physician office visits with actual medical records and, if needed, supporting testimony from treating physician(s) as well as expert witnesses is how physical harms are most successfully proven. Thus, anyone who is actually injured in a motor vehicle accident should seek medical attention, at an office, from a physician. Obtaining such medical care is, first and foremost, necessary to getting better... and secondarily will help support a claim for phsyical harm. As one would correctly assume, jurors tend not to believe that a person who does not seek professional medical treatment suffered any significant injury.

    - Paul

    Paul J. Molinaro, M.D., J.D.
    Attorney at Law, Physician, Broker
    Fransen & Molinaro, LLP
    980 Montecito Drive, Suite 206
    Corona, CA 92879
    (951)520-9684
    www.fransenandmolinaro.com / www.888MDJDLAW.com

    "When you need a lawyer, call the Doctor... Call Paul J. Molinaro, M.D., J.D... Call (888)MDJDLAW."

    * This post and all others I make on Internet are for informational purposes only. None of the information or materials I post are legal advice. Nothing I post as comments, answers, or other communications should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing of this information does not constitute, an attorney-client relationship. While I try to be accurate, I do not guarantee accuracy.
    ** Fransen & Molinaro, LLP practices in the areas of personal injury, medical malpractice, and real estate law.

    Paul J. Molinaro, M.D., J.D. ... Attorney at Law, Physician, Broker... Fransen & Molinaro, LLP... 980 Montecito... more
  8. Josh P Tolin

    Contributor Level 19

    4

    Lawyers agree

    Answered . Insurance companies will not issue a check without a signed release. As all the other attorneys have answered, you should retain a personal injury attorney who can help you. Don't sign or accept anything without first consulting a personal injury attorney.

  9. Manuel Alzamora Juarez

    Contributor Level 20

    2

    Lawyers agree

    Answered . BE CAREFUL WHEN SIGNING A LEGAL DOCUMENT. DO NOT SIGN ONE WITHOUT AN ATTORNEY LOOKING AT IT FIRST. IF YOU HAVE PAIN AND SUFFERING YOU WILL DO BETTER GETTING A PERSONAL INJURY LAWYER. BEST OF LUCK.

    This answer is provided by California Accident Attorney Manuel A. Juarez, Esq., 510-206-4492. Abogado de... more
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