My father's legally parked car was hit by a drunk driver. The driver then tried to leave the scene and hit/went through a fence.

Asked over 1 year ago - Pittsburg, CA

My father has liability only coverage and the other driver has a $5k property damage limit to her insurance. We have to share the $5k with the other party involved. They will be made whole due to their property insurance. We only get a small portion of what we think the car is worth. What recourse do we have? Is there something we can do or are we SOL?

Attorney answers (10)

  1. Fernando Davin Vargas

    Pro

    Contributor Level 15

    14

    Lawyers agree

    Answered . You will only be paid a pro rata share of your damages, as the policy limits have to be shared equally by all claimants. However, assuming the amount of your damages is less than $10,000.00, you can always pursue the matter in small claims court. Be sure to ask the judge for your costs at the end of the hearing; and though you should prevail in court, you may have some difficulty collecting the judgment. Best of luck!

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  2. Edward R. Yaghoubi

    Pro

    Contributor Level 9

    13

    Lawyers agree

    Answered . I agree with Mr. Vargas. If you decide to file a small claims suit against the person, MAKE SUE YOU DON'T SIGN ANYTHING with the other driver's insurance company, specially a Release/settlement agreement.

  3. S. David Rosenthal Esquire

    Pro

    Contributor Level 18

    11

    Lawyers agree

    Answered . Legally, your liability claim against the responsible party is not limited by the insurance policy. Hypothetically you could sue the drunk driver for every penny. That is the leverage that you have to insist on more of the $5k given that the other claimant has other insurance. Fairness dictates that since the other person will be made whole, you get a much higher share of the limited auto liability insurance. If the insurance company and/or the other party do not agree to give you more, then you can refuse to settle. More than likely, the other damaged party cannot receive any money from the other insurance until they know how much the he will get from the auto policy. The insurance company wants to settle the claim and close the file. So if they refuse to give you more, simply refuse to settle. Eventually they will soften. You could put even more pressure on them by filing suit. Of course, all of this is much easier if you have legal representation, but that may not be very practical.

    Good luck.

  4. Barry J. Simon

    Contributor Level 9

    11

    Lawyers agree

    Answered . I agree with the other answers. In the future, your father should carry full coverage including collision and I advise my clients to carry 300 K or 500 K at least in liability and uninsured motorist coverage because the cost is not that much more and it may save you if one of you gets hit by an uninsured or underinsured driver.

  5. Christian K. Lassen II

    Pro

    Contributor Level 20

    12

    Lawyers agree

    Answered . Small claims court.

  6. John Noah Kitta

    Contributor Level 19

    10

    Lawyers agree

    Answered . I don’t know what the insurance companies portion of the damages as between personal property, the vehicle and the fence is but it sounds like the car has more damage than the fence I would guess. The car is $7500 and the fence was $2500 and you think you should get 75% of the $5000 policy. In addition you can sue the drunk driver and the owner of the vehicle. You can sue in small claims court for $10,000. Get an estimate of the vehicle and see what the damages are.

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  7. Marc Lazarus

    Contributor Level 14

    10

    Lawyers agree

    Answered . I'm not sure if Victim's of Crimes pays property damage claims but you can submit a claim. Also, you might contact the District Attorney who is prosecuting the case, and ask if there is any restitution order.

    Marc Lazarus
    www.russellandlazarus.com
    (800)268-9228

  8. Robert Bruce Kopelson

    Contributor Level 20

    10

    Lawyers agree

    Answered . You dont have to share the 5k. Just go and sue the deft for your property damage. If less then 10k, sue in small claims.

  9. Anthony David Scott

    Contributor Level 11

    9

    Lawyers agree

    Answered . Simple, assuming that the driver was arrested contact your local police department or the local prosecuting attorney, explain that your father is a victim and provide them with the total cost of your loss. Most often the court will require, as a term of criminal probation, that the offending party pay restitution. Good luck.

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  10. Richard Andrew Harting

    Pro

    Contributor Level 18

    8

    Lawyers agree

    Answered . Many of the post missed on this one. Your BEST remedy is to contact the DA prosecuting the DUI and advise of your damages and that you want a restitution hearing. The judge can order the other driver pay you the full damages as a condition of the sentencing.

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