QUESTION:
My motorcycle was parked. It was hit by a car, whose driver admitted fault. Her insurance appraised my bike and sent a $1400 check. However, the appraiser did not list some of the damaged parts, even though I am sure they are visible in the pictures he took. The additional parts amount to $600, but the insurance has refused to pay for those. They requested I leave the motorcycle to a mechanic to have it reappraised (they refused to send an appraiser at my work place again), but the mechanic could not get in contact with them. Can I cash the check and sue the driver in small claims for the damaged parts which are missing from the original estimate? Or should I sue the driver for the total of $2000? Can I keep the check without cashing it while I sue, or should I send it back?
ANSWER:
In all civil cases, plaintiffs (and cross-complainants) will ordinarily want to know whether defendants (and cross-defendants) have the financial means to satisfy a judgment—primary coverage, as well as possible “excess” and/or umbrella coverage. However, discovery of insurance information also impacts these particularly important aspects of personal injury litigation. Plaintiff’s counsel will need to know early on where the full ability to satisfy a judgment lies. Since plaintiff may not rely on one “deep pocket” or “target” defendant to satisfy the entire judgment, it is important to pursue insurance coverage (including reinsurance, umbrella and excess coverage) information as to each defendant. If an insurer for claimant or an adverse party is insolvent, there may be recourse against the California Insurance Guarantee Association (CIGA) for “covered claims.” Be aware that a timely claim must be presented to CIGA; and there are monetary limits on the maximum claim payable by CIGA (generally$500,000). Do not be discouraged by a bankrupt, judgment-proof defendant who has insurance. The plaintiff may proceed against a discharged debtor solely to recover against the debtor’s insurer. [Forsyth v. Jones (1997) 57 CA4th 776, 780–782, 67 CR2d 357, 359–361]. The discharge will, however, preclude plaintiff from recovering defendant’s deductible on the policy, since that is the insured’s personal liability.
Whether to pursue a claim and the manner in which a particular claim should be pursued with respect to settlement (Ch. 4) depends in substantial part on the value of the claim. “Value” is, to a large extent, a reflection of the damages incurred. Thus, every claim must be analyzed from the outset for its damages components; and for the “odds” on the extent of recoverable damages. Also keep in mind that the “value” of plaintiff’s claim ultimately depends on evidence to support it. Plaintiff’s naked assertions as to pain and suffering, medical expenses, loss of earnings and earning capacity, etc. will have little effect on an insurance claims representative or jury without corroborative proof. Thus, counsel evaluating damages should always: determine the best evidence available to substantiate plaintiff’s assertions; and acquire that evidence while it is fresh. It would be best to seek personal assistance from a lawyer in order to guide you with your personal injury claim.
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