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My wife was involved in a car accident 2 yrs, 9 mos ago. Insurance did not cover damages to car, deemed "no fault" at scene

Cary, NC |

She was going straight at an intersection; had a green light. The person at fault was going left; did not yield to my wife. Car totaled. He either had a green light or a flashing yellow arrow. Either way, left needs to yield. This is why I don't understand why the cop didn't charge him with anything at the scene. There is even an eye witness who told the cop that my wife had a green light (she was behind her). I reached out to her, but I haven't been able to get her to give me a formal affidavit, I'll keep trying. She's happy to talk, but getting her to fill out the form hasn't been easy.

Question is: who do I sue (who can I sue)? NC Law seems to say that I can only sue the driver. Is that right? My wife doesn't want to proceed...but I do! Any advice? Thinking small claims court for $2k

My wife is extremely apprehensive about doing anything, and it's been difficult to get her to think we can do anything. Simply convincing my wife that we have a case would be good enough for me. We were just married a few months ago, so...her concerns are now my concerns! From what I can tell about the law: I have three years to file a suit (so time's running out), I cannot sue the insurance company directly. I was thinking bringing up a small claims case against both the driver and the insurance company. What are my rights in this area? This is largely a symbolic case for me, my wife just wants to "leave it alone", but I cannot stand by when my wife's insurance premiums have doubled for almost 3 years. I don't think I can collect anything in that space, but I would at least like to go after the damages that were lost (her insurance company gave her about half the cost of the car when it was totaled).

Attorney Answers 4

Posted

Avvo Email - Have no legal fearBased only on what you have presented, I would suggest first calling the other driver's insurance company and trying to settle the claims without having to sue. The insurance information should be on the police report. You have the right to sue for recovery of the property damage if, at the time of the accident, you are an owner of the vehicle. You cannot sue for your wife's personal injury. She has to make that claim herself.
If you sue, you should sue in district court instead of small claims. District court judges are more used to seeing these types of claims and will be better at making the decision. You don't have to have a jury trial, and you likely won't even go to trial.
Your problem will be in the Insurance company replying with contributory negligence and claiming that your wife had a duty to maintain a proper lookout and not enter the intersection unless safe to do so. This is a bogus tactic in these types of cases, but it can often work. If contributory negligence is successful, you get no recovery. The Insurance company will often call this the 1% rule, meaning if your wife was at least 1% negligent, then no recovery.
You are correct that you sue the other driver, but if the owner of the other car is someone other than the driver, you can sue them too.

I hope this helps,
~Locke

**Disclaimer** I am licensed to practice in North Carolina. I practice out of Raleigh and Wake County. This answer, to the extent it provides legal advice, is fact specific, and only intended for the jurisdiction where I am licensed.

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Posted

Thank you, good information.

Posted

You would sue the driver directly, not the insurance company. However, I'm afraid its your wife that must sue, as she is the injured party, unless you are the title owner of the car, in which case you can sue directly for the damages. You are, however, going to need her cooperation in testifying as to the facts of the accident.

This is general advice and does not establish an attorney-client relationship.

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Posted

Best bet is to discuss it in detail with the above lawyers in your state to explore all remedies.

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Posted

There's no question about whether your wife has a case. She does. And she could file a lawsuit against the driver and the owner of the car. The big question is should she file such a lawsuit. First, it sounds like she has absolutely no interest in filing a lawsuit. If this is the case, then I would respectfully suggest that you just let it go. Pushing her into doing something as big as a lawsuit could end up hurting your relationship. Lawsuits are quite stressful to the parties involved. If you push her into filing this case, she may resent you for it later. Second, I understand from your post that she settled with the other guy's insurance company for about one-half of her damages to the car. I saw nothing in your post about her being injured in the crash. Unless she was injured and received medical care, it does not sound like she has a sound factual basis for filing suit. If her only "damages" are the losses associated with not getting as much as she could have from the insurance company on the property claim, then she really has no case to file. You cannot recover damages in this situation just because she didn't get enough for her property damage or because her insurance rates have gone up. Once you settle a claim and sign a release, that part of your case is over. Now, if she was injured, and if she sought medical care, then she could pursue a personal injury case and file a lawsuit to recover for her injuries. You are correct that she only has 3 years from the date of her crash to file a lawsuit. If she fails to file before the 3rd anniversary of her wreck, then she will be forever barred from recovering for her damages. Good luck to you and your wife!

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