Other party insurance finds partial fault, cannot subrogate

Oct 22, 2018

  1. junkman
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    Carriers fold frequently easily. A friend of mine had a brake line fail from rust along the frame rail. He bumped the bumper of the car in front. Very minor damage but the driver sued. Carrier settled for $10,000 rather than pay attorney fees to defend.
     
    junkman, Oct 24, 2018
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  2. insureddriver
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    insureddriver New Member

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    Its $1600, but I am at 40% fault.

    Would I take Progressive or the driver who hit me to small claims court?
     
  3. junkman
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    Take the driver. He is responsible for the accident. He paid Progressive to indemnify him in the event of an accident. He owes you the money not the insurance company.
     
    junkman, Oct 24, 2018
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  4. VolAgent
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    Eh... Not exactly, but close enough.

    Yes, you sue the driver and not Progressive. Progressive has a contract with him that obligates them to indemnify and defend him. Ultimately they will step in and pay should you win. I'm coming up with $640 as the amount Progressive hasn't paid. I would get the vehicle fully repaired so you can get a final bill. Also, you may be able to add additional expenses you faced to the amount. I recommend researching small claims court in your state and seeing what the limit is and what you can also for.

    Also, I highly recommend you prepare yourself before going in. While judges in small claims courts are use to dealing with individuals, you still want to appear knowledgeable, factual, and prepared. First impressions do count. Avoid emotions and stick to facts. Also pay attention to the judge and his reactions, it will give you clues what to avoid and what to focus on.
     
  5. insureddriver
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    insureddriver New Member

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    I live in NJ, but the accident and the other person lives in NYC. What court would I go to?
     
  6. VolAgent
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    You should research it to be sure, but I suspect NY as that is where the accident occurred.
     
  7. adjusterjack
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    And where the defendant lives so, yes, NYC would be the proper venue.

    Insureddriver, if you decide that you do want to go to small claims court here's what I suggest.

    Get your car fixed, pay the bill. If you need a rental while it's being fixed get one, pay the bill when you are done.

    Download a small claims complaint form (CIF-SC-50) from the website:

    Forms: New York City Small Claims Court

    Fill it out (don't file it yet) and attach it to a demand letter addressed to the other driver. Attach copies of your paid invoices. Give a deadline date for payment after which you will file suit. Also send a set to the claim rep.

    Attaching the small claims complaint forms shows that you know what you are doing and mean business.

    Might or might not get you the rest of the money. No guarantees. Just don't bluff. Be prepared to sue immediately after the deadline date passes or you kiss the money goodbye.
     
  8. insureddriver
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    insureddriver New Member

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    Thank you for the thorough feedback.

    Is it possible for the other guy to counter sue?

    Suppose we end up going court. Would the other guy have a Progressive lawyer? Would we need to get a lawyer?
     
  9. VolAgent
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    Yes, he can always counter sue.

    Progressive has a duty to defend him, so they should provide a lawyer. You can get a lawyer if you choose.

    http://documents.nycbar.org/files/small-claims-court-guide.pdf

    It appears that lawyers are allowed, but not required in Small Claims Court in New York.
     
  10. adjusterjack
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    If he counter sues you report the counter suit to your own insurance company and your company would be obliged to defend you from the counter suit and hire a lawyer for you, for just the counter suit part.
     
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