If the collision was two years ago you may have statue of limitations issues. Consult with a personal injury attorney without delay for further advice. If the at-fault driver passed, you can sue the executor/personal representative of his estate assuming that the statue of limitation has not run.
This information is not intended as legal advice or to create an attorney-client relationship between you and any attorney. Such information is intended for general informational purposes only.
How long ago did the accident happen? There is a time limit in which you have to file a lawsuit, and in CA it is 2 years. Unless a lawsuit has already been filed, you may not be able to do anything about it. If the suit has already been filed, you will need to change naming the defendant to naming his estate. You should have an attorney to help you with this.
You still have a case against the other driver's estate once it has been established. Discuss this with your attorney if you have retained one for personal injury. If your damages are only property related, relay the information to your insurance company.
In that situation, you would file the lawsuit against that person (ex. "Joe Smith") and his estate (ex. "Estate of Joe Smith"). When did the accident occur? You have only 2 years from the date of that accident to either settle a bodily injury with his insurance carrier (if he was insured) or to file a lawsuit against him/his estate. For example, if the accident occurred on 12/10/11, today would be your deadline to have settled or file suit for a bodily injury claim. In California, you have 3 years from the date of the accident to either settle or file suit for a property damage claim.
If the other driver had insurance, I am confused as to why you have waited so long to do anything. If you don't file suit before the deadline, you will have lost your claims forever.
***This response is provided solely for general information purposes and is not intended to be legal advice, nor does it create an attorney-client relationship.
You pose a very interesting personal injury and property damage question. The answer is far from simple. As my colleagues pointed out that there is generally a two-year statue limitations in California for personal injury claims. However, claims for property damage generally have a three-year statute of limitations. With that said, a claim against the estate has different time limits. You do not state when the other driver passed away. That statute is potentially short as one year.
As you can see, your question is far from simple and you need to consult a local attorney to discuss your situation. It is rather surprising that you've waited 2 years to focus on this matter. Under California law, the insurance company can generally not be sued.
I would strongly recommend that you contact a local personal-injury attorney without delay.
The information provided is for general informational purposes only and is not intended to be legal advice. I am only licensed in the State of California and I am not providing you with specific legal advice. The law changes frequently and varies from jurisdiction to jurisdiction. Being general in nature, the information provided may not apply to any specific factual and/or legal set of circumstances and/or the jurisdiction where you reside. No attorney-client relationship is formed nor should any such relationship be implied. The information provided is of a general nature is not intended to substitute for the advice of an attorney, especially an attorney licensed in your jurisdiction. Your question, although you may believe is simple, it is not simple. You require legal advice, please consult with a competent attorney licensed to practice in your jurisdiction.
Statute of limitations for property damage is 3 years in California. Do you have Comprehensive/ collision coverage. If yes, you should let your insurance handle the dispute through arbitration. If no, you can sue the person responsible in small court, obtain a default judgment and send it to the carrier for payment.
Property damage claims are 3 year statute of limitations. If deceased opened a probate, you have/had to file a creditors claim on time. If no probate opened, you can sue the Estate of ____, and serve his ins co. You are stuck with the limits of his property damage coverage in that circumstance.
If the at-fault driver has passed away, your cause of action still exists. You will bring your case against the legal entity in place of the decedent, not the insurance company. You need to find out if an estate was established and sue the estate.
Your questions should be covered by California Probate Code Sections 550 et al. In short, you can sue the estate but just serve the insurance company, and you have one year from his death if the statute lf limitations had not run at the time of his death.
If your claim is for property damage only you have three years from the date of accident to sue. And do not sue the insurance company. Your case is against the other driver's estate. And yes, his/her insurance policy is part of that estate. Check your small claims court or local law library for a manual on how you need to proceed.
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