Drunk driver totaled my car and I still have to pay???

Asked almost 6 years ago - Sacramento, CA

I was in a car accident with no injuries on Holloween night.

I was traveling down a one way street in downtown Sacramento. It was pouring rain and a guy in a black truck ran a stopsign while not having his lights on.

I hit the breaks as soon as i saw him but still ended up t-boning him. He went to jail for driving while drunk. He has the same insurance company I do, Progressive.

Progressive says that they will pay for what the car is worth $19400. But i owe $29000. I dont feel I should have to pay the additional 10-11k since this was not my fault. If he hadn't have caused this accident i would still be making my payments and driving my Infiniti M45.

I had gap coverage through progressive as it was offered when i first put the car on the policy. i took the car off of the policy for a month while it wasnt being driven. i then called to add the car back to the policy and they are saying the gap coverage was not added back on.

Do I have to sue the drunk driver or should I persue things further with Progressive as it is their fault the gap was not put back on? they never told me they weren't putting it back on nor ask if i still wanted it back on. Keep in mind the car was totaled 3-4 days after reinstating the policy.

I should have just went to the hospital and claimed injuries as everyone suggested but I am not that kind of guy.

Josh

Attorney answers (4)

  1. Mark Corwin Bruce

    Contributor Level 7

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    Lawyer agrees

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    Answered . Yes, Josh, even though you two have the same insurance company, you need to file a lawsuit against the drunk driver to collect the damage to your car. Here's why:

    Your insurance only covers so much. In your case, the company has determined that they were only bound to cover the replacement cost of the car.

    However, the drunk driver will be required, after a lawsuit, to pay for your out of pocket costs. This includes how much you owed on the car. The judgment will have to be paid by his insurance company. It doesn't matter that it's also your insurance company.

    The insurance company, of course, is not going to tell you this. Since it's more than 7500, you will have to file a regular civil suit to collect your losses.

    BTW, that judgment should be for your total out-of-pocket cost, not just the $10,000 Progressive didn't orignally cover. However, when you collect the total cost, Progressive may ask you to reimburse them for the money they paid you under something called subrogation.

    Hope this helps.

    MCBruce, McKinleyville, CAlifornia

  2. Norman Gregory Fernandez

    Pro

    Contributor Level 15

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    Lawyer agrees

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    Answered . You are probably out of luck. In California you are only entitled to recover for the fair market value of your car, not what you owe on your car.

    The attorney above is mistaken. You will not get what you owe if you sue, and your own insurance company will not subrogate against itself. When an insurance company sues to recover that which is has paid out outside of a 3rd party claim it is called a lawsuit in subrogration.

    The fair market value of your car is not blue book value or what you owe, it is what the market will pay for a similar year, make, model vehicle in the same kind of condition, with the same kind of miles. You can get an idea what the fair market value of your car is by going to autotrader.com .

    You just learned a valuable lesson that many other people learn everyday. When You finance a car, you must maintain gap insurance unless you are willing to loss the difference between fair market value and what you owe and on car if you are in an accident. Only gap insurance will cover the difference, that is why they sell it, and that is what it is for!

    Norm

  3. Mark Corwin Bruce

    Contributor Level 7

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    Lawyer agrees

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    Answered . Much as I wish I didn't have to disagree with my esteemed collegue, I need to point out that Civil Code 3333 states that in a tort action, a person is entitled to damages in the amount of which he has lost due to the tort. I know the insurance companies don't insure for more than the fair market value of the vehicle, and they'll tell you they won't pay more than the fair market value. Still, the way I read Civil Code 3333, if you file a lawsuit asking for your total out-of-pocket damages, a finder of fact can and should find that one of those damages is the cost of the contract which you will be on the hook for due to the drunk driver's tort.

    But reasonable minds can differ.

    MCBruce

  4. Peter Robert Stone

    Contributor Level 15

    1

    Lawyer agrees

    Answered . You are only entitled to the fair market value of the vehicle. But you can hire an appraiser if you disagree with the fair market value that has been assessed. Suing the defendant will not increase your damages. In addition you can sue for personal injuries. You also might have gap coverage in the lease or the finance contract, be sure to contact the lender for to double check that information. The most you can recover is the cost to repair or the value of the vehicle, plus loss of use, no more.

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