Should I sue the other driver or use my own insurance if I had a car accident that was not my fault and only had minor damage to my car?
The manager of a body shop asked me that question and also asked what the difference is if their customers use their own collision insurance or sue the other driver who was at fault for a car accident with collision damage when there are no injuries.
Short answer: If you have collision coverage on your auto insurance policy, I recommend that you use it to repair your car rather than going directly to the other car’s insurance company. It will save you a lot of time, effort, and aggravation.
Important Note: Your insurance company has many legal obligations to you, both by law and by contract, because you paid for your insurance coverage. The insurance company for the other car in a car accident has no legal obligation to you. Your insurance company will not make you sign a release but the insurance company for the other car will.
Tips: Always call the police to get a police report when you have a car accident. Take photos of everything. Get the insurance information for the other car. If the driver of the other car says he or she will pay you directly instead of going through insurance, do not believe it!
Will My Insurance Premium Go Up if I File a Claim Against My Own Insurance?
If you have collision insurance coverage, you may be worried that your insurance premium will go up if you file a claim against your own collision insurance. However, that will not always happen and I’ll explain below how your insurance premium can go up because of a car accident, even if you don’t make a claim.
Any claim filed because of a car accident can cause your insurance premium to increase but not necessarily. For instance, some insurance companies guarantee they won’t increase your premium for your first accident.
If the accident was clearly 100% the fault of the other driver, such as if you are hit in the rear, then filing a claim with your collision damage coverage should not affect your insurance premium. Your insurance company should get back all the money they paid you and get your deductible paid from the other driver’s insurance company.
When Can I Sue the Other Driver for My Car Accident Damage?
It’s best to go against the other car’s insurance when you are not injured and there is very little damage like this minor ding from a parking lot accident.
Factors That Can Trigger a Premium Increase
Several factors can cause an increase in your insurance premium because of a car accident. If one of those factors causes your insurance premium to increase, then additional factors or claims will have no additional effect on your premium even if you file a collision claim with your insurance company.
If You or Anyone in Your Car Went to a Hospital ER or Saw a Doctor
If anyone in your car is injured, New York State law requires a No-Fault claim must be filed, and it can be filed by the hospital, ambulance, and doctors to be paid for medical treatment.
If a No-Fault claim is filed, your car insurance premium could be increased, but not necessarily. If your premium is increased because of a No-Fault claim, filing a collision damage claim to pay for the damage to your car will have no effect on your insurance premium.
I had a car accident when I was stopped at a red light and hit in the rear by a drunk driver who was arrested at the scene of the car accident and later convicted. I had a back injury and went to the hospital ER. I also saw a doctor for three or four months. My car was totaled and my insurance company, Liberty Mutual, recovered the money for the car and the deductible from the other driver’s insurance. But my premium was increased because of the No-Fault claim.
If the Other Driver Files a Claim Against Their Own Collision Damage Coverage
If the other driver files a claim against their own collision damage coverage, their insurance company may file a claim with your insurance company to recoup what they paid for collision damage. If that happens, your insurance premium may be increased, so you might as well use your own collision coverage because that won’t increase your premium any further.
If Anyone in Any Car, Other than You, Was Injured
If anyone is injured and files a claim against you, your insurance premium may be increased, so you might as well use your own collision coverage because that won’t increase your premium any further.
Claims History and Other Factors
Allstate once made me assigned risk because they said I had five claims in 40 months. The claims were three broken windshields (two from stone strikes and one from a snowstorm), a stolen and recovered car, and an accident that they said was 50% my fault. Read about what you should know before replacing a broken windshield.
I always pay my premium on time, but if you pay your premium late too many times, that can increase your premium. Your age, where you live, your credit rating, and other factors can have an effect on your insurance premium.
Even if No Claim Is Filed With Your Insurance
Even if you don’t file a claim with your insurance, the other car’s insurance doesn’t file a claim with your insurance, and no one else does, your insurance company could still find out about your accident and increase your premium if a police report was made.
Insurance companies usually search for police reports. If a police report was made, it must be filed with the New York State Department of Motor Vehicles. Your insurance company will find the police report for your car accident when it searches the NYS DMV database for police reports.
Factors to Consider Whether You Should Sue the Other Driver or Use Your Own Insurance
Whether you should sue the other at-fault driver or use your own collision insurance will depend on the following:
- If you have any pain or injury.
- If you went to the hospital ER or saw a doctor after your car accident.
- If anyone else was injured in the car accident or you receive a letter from a lawyer.
- The amount of fault of the other driver.
- The extent of the damage to your car.
- The insurance coverage of the other driver’s car.
- Which insurance company the other car has.
- Your insurance history for the last 40 months which includes a variety of factors, such as whether you had any traffic convictions or claims, paid your premiums on time, credit history, and other factors.
- If you have rental car coverage or can get a rental paid by the other car’s insurance.
- Your insurance company will not require you to sign a release.
- The amount you value your time and effort.
If You Have Any Pain or Injury
If you have an injury, you should call a car accident lawyer in New York immediately. If you don’t have an obvious injury but you have some pain in your neck, back, shoulder, knee, or anywhere else, you should also call a car accident lawyer immediately.
You should know that frequently, people have pain in their neck, back, shoulder, or knee and find out weeks after the car accident that the pain was due to a serious injury often requiring surgery.
If you are injured or in pain and we represent you for your car accident, we can advise you whether you should use your own collision insurance or not. If you decide to sue the other driver for your collision damage, we can include that in your lawsuit and we will not charge you a legal fee for the money we collect for your collision damage.
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If You Went to the Hospital ER or Saw a Doctor After Your Car Accident
If you went to the hospital emergency room, urgent care, or saw a doctor because of your car accident, New York State law requires that the bill must be submitted to your No-Fault insurance company, which is the insurance company for your car.
That means you will have a No-Fault claim, and it is possible that your car insurance premium could be increased.
If Anyone Else in the Car Accident Has Any Pain or Injury
If anyone else in any of the cars in the accident was injured or has any pain, you will very likely receive a claim letter from their lawyer and a lawsuit may be filed against you, even if you think the car accident wasn’t your fault.
You may think that no one was injured in the other car but very often, people don’t even know they have a serious injury until a day or even weeks after the car accident. Even a broken bone may be discovered a day or two after the car accident and frequently, people find out months later that they need surgery.
If you receive a letter from a lawyer, the lawyer will also send a copy of the claim letter to your insurance company. Still, you should immediately contact your insurance company. Read about when you need a lawyer if you are being sued for an accident.
The Fault of the Other Driver
Even if you think the other driver is at fault for causing the car accident, that driver’s insurance company may not agree with you.
If the other driver’s insurance company does not agree that their driver was 100% at fault for causing your car accident, the driver’s insurance company will not pay you 100% of your damages if you don’t have a lawyer.
You will usually get the agreement of the other driver’s insurance company when:
- You were hit in the rear
- The police report shows the other driver ran a red light
- The police report shows the other driver ran a stop sign
- The other driver was drag racing when your car was hit, or
- Your car was parked when it was hit.
An example of how the other driver’s insurance company is not always agreeable is when a friend of mine called me with a problem. He had a brand new $80,000 BMW that was hit by a car when his BMW was legally parked.
My friend didn’t have collision coverage on his insurance policy, so he tried to get the other car’s insurance to pay for the damage. But the other car’s insurance wouldn’t offer enough money to replace the car, which was totaled, even though it was parked when it was hit.
I had to represent my friend to get his car replaced.
How Much Damage Your Car Has
If your car only has a small amount of damage, the other driver is 100% at fault, and you are sure that no one was injured, you could try to have the other driver’s insurance pay for your damage.
The Insurance Coverage of the Other Driver’s Car
The at-fault car in a car accident may have minimum liability coverage for property damage which may not be enough to cover the damage to your car. The minimum liability coverage for property damage in New York State is only $10,000.
If your damage is more than what the at-fault car is insured for, you will have to file a collision damage claim with your own collision coverage insurance.
If the at-fault car in a car accident is uninsured, you will have to file a collision damage claim with your own collision coverage insurance. If the at-fault car was stolen, the insurance coverage will not cover the stolen car and you will have to file a collision damage claim with your own collision coverage insurance.
The Insurance Company of the Other Car
If the at-fault car in a car accident is insured by a major insurance company, you will have an easier time. But if the at-fault car is insured by an insurance company you haven’t heard of, like American Transit, you will never get paid, so you should file a collision damage claim with your own collision coverage insurance.
A friend’s car was parked when it was hit by a taxi insured by American Transit. My friend asked me for advice and I told him to file a claim with his own collision coverage insurance. But he was afraid his insurance premium would go up, so he filed a claim with American Transit.
After six months of American Transit not paying him, he gave up and filed a claim with his own collision coverage insurance.
Your Insurance History
Insurance companies look at the last 40 months of your history, which includes a variety of factors, such as whether you had any traffic convictions or claims, paid your premiums on time, credit history, and other factors.
All of these factors will determine whether your insurance company will raise your insurance premium.
If You Have Rental Car Coverage
You may need a car while your car is in the body shop being repaired. If your car is totaled, you will need some time to find a replacement car.
If you have car rental coverage, your car rental coverage will pay for a rental car.
Tip: Be sure to tell the car rental agency that your car is in the body shop or was totaled because you will get a much better rate. Better yet, ask your body shop if they can help you get a rental car.
The other car’s insurance may pay for a rental car but they don’t have to and they won’t pay 100% if the claim rep thinks it was partly your fault.
Signing a Release
If you have collision damage coverage, your insurance company will not require you to sign a release.
If you file a lawsuit against the other driver, that driver’s insurance company will require you to sign a release before they will issue a settlement check to you. Find out if you can accept an insurance settlement check for collision damage to your car.
Do not sign a release that includes injuries. The release will prevent you from getting more money if you find further damage to your car. Body shops frequently find more damage after they begin working on your car.
How Much Do You Value Your Time?
You may spend a lot of time and aggravation trying to get the other car’s insurance to pay for the damage to your car and for your rental car.
Suing the other driver can be a lengthy and complicated process, requiring a lot of time and effort on your part. Using your own insurance is usually the best option. You paid money for collision coverage which will make your life easy. Why not use your collision coverage?
How to File a Claim Against the Other Driver’s Insurance
Get a copy of the police report. See how to get a copy of the police report in New York. On the police report, you will see a three-digit code for the other car’s insurance company. To find the name of the car’s insurance company, enter the insurance company code at this link on the New York Insurance Department website.
Who Do I Sue, the Driver or the Insurance Company?
You can’t sue the insurance company. You must sue the owner of the car and the driver of the car. Their insurance company will defend the lawsuit and will pay any settlement or judgment.
However, you can start by filing a claim, not a lawsuit. If the other car’s insurance company won’t pay you, you don’t have collision coverage, and you are not injured, you can file a lawsuit.
A lawsuit can be filed in Small Claims Court in New York for up to $5,000. If your damage is more than that, you can file a lawsuit in Civil Court in New York City or District Court anywhere else in New York.
Phil Franckel is well-known in New York and has been a personal injury lawyer since 1989. He is a Founding Partner of 1-800-HURT-911, LLP®, the Personal Injury Dream Team™, and a former Member Board of Directors of the New York State Trial Lawyers Association. He has an Avvo Top 10 Rating, Avvo Client’s Choice Award with all 5-star reviews, Avvo Top Contributor Award, Multi-Million Dollar Trial Lawyers Award, and others. See Mr. Franckel’s bio for areas of expertise.
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