The legal system is designed to restore a plaintiff (accident victim) to the financial condition they were in before an accident or injury occurred.
In theory, if you were injured or experienced a loss of property as a result of someone else’s negligence, you should be able to recover the amount you need to cover your expenses. When the accident is a motor vehicle collision, the at-fault party’s insurance should cover your costs.
But what if the other driver was uninsured?
The process becomes more complicated if the at-fault driver didn’t have insurance. Or, they might have some insurance, but a basic liability plan might not include sufficient coverage for your losses.
Uninsured (UM) or underinsured (UIM) motorist insurance coverage
Uninsured and underinsured motorist coverages are policy add-ons that you can choose when you purchase insurance. If you’ve included uninsured or underinsured motorist coverage, your insurance will pay the claim after a collision with an uninsured driver.
If you don’t have uninsured motorist coverage on your own insurance policy, you cannot make a claim or recover damages against an uninsured driver.
When you’ve been in an accident, it’s important to file a report to your insurance company right away. A report is not the same as a claim. It’s important to gather evidence, get a police report, and call your insurance company even if the other driver tells you right away that they don’t have insurance.
If they truly are uninsured, your insurance company can’t file a claim against them — like the saying goes, you can’t squeeze water from a stone. Insurance companies work by filing claims against other insurance companies, so if there isn’t one, there’s literally no way for the insurance company to recover damages.
Or is there?
In other words, it might sue the other driver or make a claim against their insurance company (if they had some insurance, but not enough).
Fortunately, that’s between your insurance company and the other driver’s, and it doesn’t affect you.
By the same token, if you don’t have uninsured motorist insurance, and the at-fault driver doesn’t have insurance, you only have one option: to file a personal injury claim against the driver.
Filing an uninsured motorist claim
Notify your insurance company right away if you’re planning to file an uninsured motorist claim.
Some insurance policies have strict deadlines and won’t cover you if you don’t notify in time. If you believe that the other driver is uninsured, or if they won’t provide insurance information at the time of the accident, call your insurance company immediately.
In a situation where the other driver is insured, your insurance company makes a claim on your behalf against their insurance company. But in this situation, YOU are making a claim against your own insurance company. That’s an important distinction because it affects how things are handled if the settlement offer isn’t satisfactory.
If your insurance company is representing you against another insurance company, the 2 companies will negotiate with one another to reach a settlement. If the settlement isn’t what you believe you deserve, and if you can’t reach resolution on appeal, you’d hire a personal injury lawyer to file a lawsuit.
It’s slightly different if you can’t reach agreement in an uninsured motorist claim against your own insurance company. In that situation, you’d go to binding arbitration. Arbitration is less formal than litigation, but “binding” arbitration means you need to stick with the outcome.
In this scenario, both parties would appear for a hearing before an arbitrator or panel of arbitrators who act like judges. Each party would present their arguments and the arbitrator would make a decision.
When to file a personal injury lawsuit against an uninsured driver
If the world (and the legal system) worked perfectly, here’s how a legal proceeding would play out after an accident.
But the reality is that the aftermath of an accident is rarely this easy to navigate.
First, if there are questions about who was at fault, or if you share liability, that’s going to affect how you proceed.
Second, even if you’re certain the other driver was 100% at fault, there’s still a question of whether they have the assets to pay a judgment for damages if your claim is successful.
We can’t generalize that every uninsured driver has no assets, but if they’re driving a car without insurance, the reality is that they might not have the money to pay a personal injury judgment.
If you’re granted a judgment against a defendant who has no assets, they might declare bankruptcy. Bankruptcy means they’re no longer responsible for paying the judgment, and you won’t recover any compensation.
However, there are good reasons to file a personal injury lawsuit.
For example, say the cost of your injuries came to $400,000. If your uninsured motorist coverage maximum is $200,000, you might be able to recover the remaining $200,000 through a personal injury lawsuit.
What if you don’t have uninsured motorist insurance AND the other driver has no money to pay a judgment?
This is a good reason why you should get uninsured motorist coverage.
When you’re in an accident with an uninsured driver, you have two options:
- File a legal claim (i.e. personal injury lawsuit) against the driver
- Claim uninsured motorist benefits from your own insurance company
If you don’t have coverage, a lawsuit is your only option.
If the driver doesn’t have money to pay a judgment, you’re probably never going to see any of the money. That’s why uninsured motorist coverage is your best bet to receive any compensation following an accident with an uninsured driver.
What to do if the defendant doesn’t pay damages
If you win a judgment against a defendant who can’t or won’t pay, you can return to court and apply for an order that requires payment. However, the court might not require payment when it’s aware that the defendant legitimately has no money to pay.
But there are 2 ways to recover money from a defendant who won’t pay a judgment:
- Lien on property. If your lawyer learns that the defendant owns some assets, they can file a lien against the defendant’s property so the assets are frozen (i.e. can’t be sold or spent) during the course of the lawsuit. Once a judgment is filed, the defendant isn’t required to sell their property immediately. When they do sell the property, though, you’d be paid out of their proceeds from the sale.
- Payment plan. If the defendant has some money but not enough to pay the judgment immediately, the court could set up a payment plan so the defendant pays you a small amount per week or per month.
Should you file a personal injury lawsuit against an uninsured driver?
Like many aspects of the law, it depends.
Primarily, it depends on the uninsured driver’s ability to pay. Your personal injury lawyer can advise you about whether the defendant has assets that would cover your injuries, either partially or wholly. But, the best-case scenario is still to use your own uninsured motorist insurance as your first resource for compensation against an uninsured motorist.
A lawsuit is meant to make the plaintiff “whole” — in other words, the purpose is to restore you to the condition you were in before the accident. Most personal injury lawyers work on a contingency basis, which means they don’t get paid until you recover damages. When you recover, they receive a percentage of those damages.
But money isn’t the last deciding factor. A lawsuit requires time and could be stressful for all parties involved. A lawyer likely won’t take a case to court unless they believe they have at least a 50/50 chance of winning. So even if you “win,” you haven’t really won anything if the defendant can’t pay your damages.
You might have to pay court costs, fees for expert witnesses, administrative costs for your lawyer to do asset checks or background checks on the defendant, or other legal expenses. If the defendant can’t pay for the damages, you’ll have lost all of the money you spent on a lawsuit.
Is it worth it?
You can ask a lawyer. Begin by using the Enjuris Personal Injury Law Firm Directory to find a lawyer in your area who can advise you of how to proceed to receive recovery damages.
P wolf says
I was a passage . The person driving me.ran into a car . .that was parked in the lane we were traveling in .the driver of that car had just caused.a two car collision. .my driver tryed. To go around the wrecked .well he should have stopped.but instead .our.his the car I was sound asleep in chipped the other car .and I woke up screaming .with all that said .I have sufficient facial scars.along with other conditions.. Driver #1 had minimum coverage .and did my driver. But driver #1 doesn’t make it .. but he caused the initial wreck …and my life will never be the same.i didn’t get a good amount . I Know that the amount hardly.coverd the medical bills.and I was basically forced to sign the agreement.iwas told that because it was going on two years I had to take the offer or I would lose everything. I am Left with massive amounts of fear and lack of confidence and consortium.along with missing teeth and an eye take didn’t heal properly.along with other aliments. I am trying to see if someone can help me out with the lost of my way of life .I don’t know how it works.can any one point my in the right direction.
Ian Pisarcik says
I’m so sorry this happened to you.
If you feel that the insurer forced to sign an agreement, you should consult an attorney to see what legal options you may have. Most attorneys will provide free initial consultations. You can find an attorney using our free online directory.
It’s also important to find a motor vehicle support group in your area. Support groups are an invaluable resource in helping you get through these difficult times.
V says
From West
If my uninsured policy pays for damages to my car can I still sue the uninsured driver for hitting my parked vehicle no injuries
Ian Pisarcik says
Generally speaking, you can sue the at-fault driver for any damages suffered that your insurance policy did NOT cover. For example, if you incurred $20,000 in damages and your uninsured policy covered $15,000, then you could sue the at-fault driver for $5,000.
Krystal says
From Alabama
My uncle was involved in a car accident that ultimately resulted in his death. The other driver was ruled at fault so her insurance paid off the car and offered the small limits under the underinsured portion of her policy. His insurance company turned around and also paid the underinsured portion under his own policy. 1). Is this considered a settlement? If not, can we still file a lawsuit? 2) Does my aunt get it all?
Ian Pisarcik says
In wrongful death cases, it’s common for an insurance company to pay the policy limits. So long as the innocent party doesn’t sign a “settlement and release,” they can usually sue the at-fault party for the damages owed above the policy limits.
The best thing for you to do is meet with a personal injury attorney in your area. Bring all the paperwork related to the insurance claim. The attorney will be able to review the documents and tell you whether you can still pursue a claim against the at-fault party. In most cases, the attorney will do this for free.
Leigh Ann Wonders says
From Washington
An uninsured driver rear ended my car and it was a total loss. My insurance company and gap coverage didn’t cover all costs I was still owing $3000 to the bank. Can I sue uninsured driver for the $3000 not covered by my insurance?
Ian Pisarcik says
Yes you can. Unfortunately, uninsured drivers often don’t have the money to pay a judgment. Nevertheless, you can sue the driver and attempt to collect the judgment.
Leigh Ann Wonders says
From Washington
An uninsured driver rear ended my car and it was a total loss. My insurance company and gap coverage didn’t cover all costs I was still owing $3000 to the bank. Can I sue uninsured driver for the $3000 not covered by my insurance? Please let me know your opinion
Ian Pisarcik says
Thanks for the questions.
Yes, you can certainly sue the uninsured driver for the damages not covered by your insurance policy. Unfortunately, uninsured drivers often don’t have the money to pay a judgment. Nevertheless, there are some collection methods that an attorney can employ (such as wage garnishment) if you’re able to obtain a judgment.
Riley says
From Texas
Is it worth it to sue an uninsured driver for my $500 deductible? I was not happy about having to spend the money for something that wasn’t my fault and would like my money back. My insurance used my collision part of my policy until they can confirm that she didn’t have insurance…which I know she didn’t because all she had was a bunch of expired policy documents. My insurance company is also very slow and unresponsive. I just want my money back. I’m thinking of contacting the driver myself to see if she is willing to pay before trying to sue.
Ian Pisarcik says
Your best option is to try to reach a private settlement with the driver.
The unfortunate reality is that most uninsured drivers don’t have the money to pay a judgment. This means that, even if you obtain a judgment in small claims court (which will take time and require that you pay a filing fee), you may not be able to actually recover the $500 from the uninsured driver. There are procedures for obtaining judgments (such as recovering assets and garnishing wages), but those procedures also take time and cost money. Therefore, practically speaking, your best bet is probably to settle with the uninsured driver for any amount she’s willing to pay you.
Therri J. says
From Ohio
I was rear ended in an auto accident last week. The driver said she didn’t have her insurance info with her at the scene. We exchanged our names and phone numbers but I didn’t get her license plate. The driver said she would pay for the damages done to my car when I got an estimate. The police were not called to the scene but I did go to the police station to make a report. Apparently, the police have been unable to locate the driver. I have damage to the rear passenger side of my car as well as injuries. I do have uninsured motorist with bodily injury coverage on my policy. If the police are unable to get the at-fault driver’s info will my insurance company cover my auto repairs and medical bills without a police report?
Ian Pisarcik says
Your insurance company will conduct a brief investigation (which may be as simple as talking to you about the accident). Assuming the insurance company doesn’t have reason to believe that your story is untrue, they will cover your auto repairs and medical expenses up to the policy limits. Your insurance may also attempt to track down the at-fault driver. It would be wise to take photographs of your vehicle an write down your version of events while they are fresh in your mind.
Manuel says
From California
I was t-boned while making a turn at a signal. I suffered a traumatic brain injury and fractured lumbar. I was found unconscious at the scene and was in a coma for 5 days. The driver at fault gave the police a false insurance policy number and I later found out from my insurance that he had no insurance. I didn’t have uninsured motorist insurance, so it was considered a total loss for all my medical bills and vehicle. Hospital bill came out to about $250,000.
I’m not really sure if there is much I can do or if I can sue him personally?
Any advice on my next best step would be appreciated.
Ian Pisarcik says
Manuel,
You can certainly sue the driver personally in this situation.
The problem with suing an uninsured driver is that they often don’t have the money to pay a judgment. Nevertheless, your lawyer will be able to review the at-fault driver’s financial situation before filing lawsuit to determine if it’s worthwhile.
I would absolutely recommend sitting down with a personal injury lawyer to discuss your case. Most initial consultations are free. You can locate a license attorney using our free online directory.