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Can one sue the uninsured motorist at fault in small claims court after receiving settlement from insurance?

Portland, OR |

My son, a minor, rear ended someone while uninsured. The individual was awarded a sum of $16,900 from his insurance. He is now trying to take us to small claims court for more $$. Is that legal? Also, his insurance company that paid his claim is harassing us for the sum paid out. Can the insurance company get a judgment against us without going to court? Would we know about it?

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Attorney answers 4


Judgments are not usually obtained without your knowledge. Generally suit papers must be served on you. In some rare cases when the defendant cannot be located, publication in a local paper can constitute service.

If the adverse driver was not paid all of his losses, for example, if there was a deductible which he had to shoulder, then he certainly could file suit against you for his deductible. The insurance company can file suit against your son and possibly you for their payment to their insured.

Your unfortunate situation points out why it is important that no one own or operate any motor vehicle without maintaining adequate automobile liability insurance on the vehicle at all times.

Legal Disclaimer :

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've asked 4 different questions, but, reading between the lines, I'll do my best. It sounds to me like what happend is that the person rear-ended by your uninsured son was paid an uninsured bodily injury settlement by that person's own insurance company. It sounds to me like that insurance company is now trying to "subrogate" that claim payment against your son. In other words, that insurance company paid a liquidated amount, but now they want their money back and they are, I think, trying to get it out of your son.

As to whether the injured person can sue your son again, it sounds to me as though the person may have been compensated for bodily injuries and now they are suing for property damage to the car. Some states allow what is called "splitting a cause of action" and some do not.

Finally, I am merely speculating on your circumstances based on a summary posting. The only way you can get an actual answer to what is happening is for you to present the actual papers that your son has received to an attorney who can review and explain.

Your son is learning an extremely valuable lesson: never set foot in a car that is not insured. Ever. No "but I just ... "

I wish you the best.

This answer is offered for informational purposes only. It is not offered as, and does not constitute, legal advice. Laws vary widely from state to state. You should rely only on the advice given to you during a personal consultation by a local attorney who is thoroughly familiar with state laws and the area of practice in which your concern lies.


1) It is okay for him to sue your son as long as he has not already settled his claims against your son.

2) The insurance company cannot get a judgment against you without going to court - a judgment is something that can only be got after going through the court process.

3) It is possible, but pretty unlikely, that the insurance company went to court without you knowing about it. The only way this could have happened is if your son was not locatable and the insurance company was forced to serve your son the lawsuit papers via a newspaper or something.


(1) If the adverse party (aka the person your son hit) suffered damages which exceed the $16,900.00 the adverse party already received from his insurer; and if those damages are attributable to your son's fault; then yes, the adverse party can bring suit against your son for the damages which exceed what the adverse party has already received.

Whether the individual your son hit can bring suit against YOU is another question and you have not provided sufficient information to answer that question. Consult an attorney on that issue.

(2) Yes, the adverse party's insurer can pursue your son for the amount it paid its policyholder as the result of your son's negligence. This is known as subrogation.

Whether the insurer for individual your son hit can bring suit against YOU is another question and you have not provided sufficient information to answer that question. Consult an attorney on that issue.

(3) In order to get a legal judgment against you, the insurer would have to serve you with a lawsuit and win that lawsuit either by default or by a verdict in its favor. You would know about it since you will have been served with the suit.

This information is offered as a courtesy and does not constitute legal advice as to the particular facts of your case. If your require a more in-depth analysis of your case, contact an attorney in your local jurisdiction.

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