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Dave Kennett
Dave Kennett, Lawyer (JD)
Category: Legal
Satisfied Customers: 27689
Experience:  25 years experience in general law, including real estate, criminal, traffic, and domestic relations
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Our car was totaled by a hit and run driver. She was caught

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Our car was totaled by a hit and run driver. She was caught and her insurance company is offering us an amount for the totaled car. The cost to repair is more than they say is the value of the car. The difference to fix and the value (their value) is about 700 dollars. The compared it to simular cars and came up with the value. However, the did not use the engine we have. They compared our 3.5 to a 3.3. Kelly blue books says it about a 900 dollar difference in value. What are my chances if I have it fixed, or buy a comp. car and sue for the difference? And who do I file legal action on? The insurance company or the car owner?
Dear JACUSTOMER - You would have to sue the driver of the other car but the problem will be that you will not be able to get any money from the insurance company unless you sign a release. So either you are going to have to sue for the total amount or accept a settlement of what they are offering. A suit could take months or even a year to get to trial and you would be without a car. You can try to get the insurance company to raise the offer a bit if you can show they were not using the right information as to the type of car but if you decide you do not want to accept their offer then you will have to file a suit against the other driver which will be defended by the lawyers for the insurance company. I certainly understand the situation but since this is her insurance company you have no contract with the insurance company and they were not a party to the accident. If you were dealing with your own insurance company you could sue them if they were not honoring your insurance policy but in this case your action is really against the other driver. I can't predict outcomes of court cases so I can't tell you whether you would prevail but be prepared to have to represent yourself in court against the lawyers from the other driver's insurance company.
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Customer: replied 4 years ago.

I guess I do have one more question. If I did sue, could my attorney fees be recovered in court if I won?

Not unless you could prove fraud on the part of the insurance company which is very difficult to do. The other risk you take is that you could actually lose the case or not get as much as you have already been offered. Nothing is 100% guaranteed when you go to court so you are always "rolling the dice" when you enter a courtroom. That is why the vast majority of cases never get to trial and are settled out of court.