I was in a not at fault accident and the at fault party had no insurance.The at fault party is an older gentleman and does have assets.I did receive a um settlement from my own insurance company.Can I sue him in small claims court for out of pocket medical expenses,my deductible to have my car fixed,and for pain and suffering?My insurance company said they had no luck trying to collect with a collection company and they stated they are not taking him to court.Can I collect for pain and suffering and for my deductible and out for pocket medical expenses?
Suing, filing and collecting are different questions and have different answers. Yes you can sue in small claims court, if your damages don't exceed the minimum jurisdictional limits of the court, $15,000.00 in Florida. You sue by filing a lawsuit which if you pursue yourself can be done with forms available at the local branch county court near you. Collection is done after you gave a Final Judgement issued by the court at the end of your case if successful. It is not automatic and depends upon the availability of collectible assets, I.e. Those not exempt from creditors such as judgment creditors ( holders) due to many exemptions in Florida, like homestead, joint marital property, retirement plans, cash value life insurance holdings, etc. you won't know if someone is collectible usually until after judgement and you do discovery in aid if execution, it's the reason most lawyers will not take a case unless the defendant has insurance coverage for the loss they would sue for.
If the man has assets, other than his homestead, then maybe you should simply contact him via certified mail with your demand for settlement. You might want to include a sentence or two requesting him to contact you within 10 days if he does not intend to send you the money. Most people would prefer to avoid litigation, especially if they are at fault. If you can't negotiate a settlement, then you should seriously consider getting a lawyer to help you, if you decide to litigate for anything over $5000, which would put you out of small claims and into either county court or circuit court. The rules of civil procedure are tricky even for us. They are impossible for non-lawyers, in my opinion.
Yes you can sue him in Small Claims Court. Keep in mind you are not entitled to ask for damages you have already received in your UM settlement. If you collected for UM, presumably many of your damages have already been paid; such as your pain and suffering, medical expenses, etc. You cannot collect twice for those damages. You could collect for your deductible to get your car fixed.
The elements of damages that you wish to recover should have been recovered by your attorney for you under your uninsured motorist coverage. When you settled with your UM carrier, you probably assigned any or all of your rights to your UM insurance carrier. I suggest you discuss this issue with your attorney. If you settled your UM claim without an attorney, you may wish to retain counsel to help explain to you where you stand.
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Mr. Lundeen is licensed to practice law in Florida and Vermont. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, could significantly change the reply and make it unsuitable. Mr. Lundeen strongly advises the questioner to confer with an attorney in your state in order to ensure proper advice is received.
You definitely have the right to sue him in Small Claims Court. What you don't have a right to do is collect damages twice. For example, If you have already received compensation for damages such as medical expenses, you won't be able to collect those damages again. In the future it is best to consult a lawyer before accepting a settlement of any kind, a lot of times when people don't consult an attorney they miss out on compensation they are entitled to.
I would consult a local personal injury lawyer. The UM settlement is paid by your insurance company in lieu of a payment from the responsible party. The UM carrier may now have the right to sue in your name for what it paid you. You suing for anything might amount to a double recovery and that is not permitted under the law. Use Avvo find a lawyer feature to locate one near you to speak with.
Assuming you had an attorney handling your uninsured motorist claim against your own auto insurance carrier, it would be best to consult with that attorney or another attorney regarding any personal injury claim against the at fault party. Additionally, the Release you executed with your own insurance company may dictate what rights you may or may not have to file a lawsuit against the at fault party. Lastly, as other attorneys have stated, filing the lawsuit, litigating the case, and obtaining a judgment are entirely different than actually collecting any money award from the at fault party. An attorney can likely review your documents and advise you on how to proceed, so it would be best to consult an attorney that will review with a free consultation.
You probably signed a release with your insurance company giving them the right to sue the other party. If so you will need their permission to sue him. However , collecting money from an uninsured person is usually very difficult unl;ess they have substantial assets.
While you may have the right to sue for monies not paid by your insurance company, and get a judgement form the court, you may have trouble collecting from a wrongdoer. If the wrongdoer money is held jointly with a spouse, or his home is homestead property, you may be prevented from forcing a sale of those assets to pay your judgement. And retirement funds are seldom available for debsst like yours. In my opinion, in general, the short answer is probably not.
If you obtain a judgment against the other party in connection with him not having insurance, DPS should revoke his driver's license UNTIL the judgment is paid and/or he files bankruptcy. You might want to confirm with DPS.
Assuming your current insurance company pain on your claim, you need to obtain permission from your own carrier so as to pursue the claim against the other driver to the extent of the amount it paid on your own policy.
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