Can I sue someone who hit my car even if insurance covers the damages?

Asked over 5 years ago - San Diego, CA

I was hit in a hit and run where my car was parked and I was not in it. The driver fled the scene but left the car. The owner of the car reported the car stolen after the claim was filed and her insurance sent me a denial letter. Due to problems of my own with my own insuranec, my deductible was waived. However, sinec the deductible was waived due to customer issues rather than the other insurance covering the costs, can I still sue? The police also spoke to me and had strong doubts that the car was stolen, as evidenced by her investigation. The owner also did not file a police report of any kind reporting the stolen vehicle. Since it is quite obvious at this point that the car was not stolen, can I sue? I am still out money for car rentals and my car has been in repair for 3 months.

Attorney answers (3)

  1. James Charles Haigh

    Contributor Level 9

    Answered . You may sue for your unreimbursed damages regardless of your deductible. The tricky issue is that there can only be one lawsuit against the adverse owner. Since your own insurer has the right to file suit against the adverse owner for the money they paid you (a subrogation claim), either you can join them in a suit, or your own insurer can waive their subrogation rights and you can pursue the adverse owner alone.

    As for the issue of the stolen car - the Vehicle Code (section 17150) provides:

    "Every owner of a motor vehicle is liable and responsible for
    death or injury to person or property resulting from a negligent or
    wrongful act or omission in the operation of the motor vehicle, in
    the business of the owner or otherwise, by any person using or
    operating the same with the permission, express or implied, of the
    owner."

    So, if there was no permission given by the owner, no liability. That is why the other insurer has denied coverage. My guess is they may be willing to pay you something in order to close the claim, as the issue of permissive use is a factual issue a jury would have to decide, meaning they would have to hire an attorney to defend their insured and that would cost more than paying the claim. Not sue how much you have in damages but small claims may be a viable option for you. First thing you need to do, however, is to write a letter to your own adjuster making them aware that you intend to pursue your claim for unreimbursed damages. That way they will not settle their subrogation claim with the other insurance company, as a settlement would preclude you from making your claim.

    Hope this is helpful for you. Good luck!

  2. Norman Gregory Fernandez

    Pro

    Contributor Level 15

    Answered . You can do anything you want. Whether it is worth your while is another matter. Based upon the faces, it does not seem like you have damages worth the effort.

  3. Vincent A. Gorski

    Pro

    Contributor Level 11

    Answered . Based on the facts you described, it appears that your only monetary damages are for the three months of car rental.

    Without additional facts, I assume that the amount paid for the car rental is low enough for you to bring a case in small claims court. Regarding your deductible, because it was waived, you are not out any money and would not be able to recover the deductible. Your insurance company may well have a claim to recover the money they paid to fix your car, but this is something that they would pursue, not you. Therefore, it appears that your only claim would be to recover the cost of the rental car.

    Depending on how much you paid to rent the car, it may be worthwhile to bring a claim. The owner of the car would have to establish any defenses. Based on the facts you describe, he/she may no longer argue that the vehicle was stolen.

    I wish you the best of luck in finding a resolution to this matter.

    Disclaimer: The materials provided herein are for informational purposes and neither constitute legal advice nor should they be relied upon as legal advice. Every situation is fact sensitive, and it is impossible to evaluate a legal problem without a comprehensive consultation and a review of all facts and documents at issue. This answer does not create an attorney-client relationship.

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