If you are injured or your car is damaged after an accident with an uninsured driver, you have two options:
- sue the uninsured driver for damages, or
- file a claim for uninsured motorist benefits against your own insurance company.
In this article, we'll take an in-depth look at both options.
Suing An Uninsured Driver
Unfortunately, suing an uninsured driver is generally not a good option, from a financial standpoint. Suing an uninsured driver will not usually put much (if any) money in your pocket. This is because most uninsured drivers have little or no money or assets.
If you win a judgment against a person with little or no money, you are probably not going to get any money from the judgment because the defendant has no money with which to pay you.
If a defendant does not pay a judgment, you can go back to court to apply for a court order requiring the defendant to pay you. However, courts recognize that a winning plaintiff can’t get blood from a stone, and will not require a legitimately indigent defendant to pay a judgment.
The Payment Plan Option. If the court finds that the defendant does have some money, the court might set up a payment plan, and have the defendant pay you a certain amount per week, which is generally not a very large amount. This will almost definitely not be a very satisfying result because you probably don’t want $20 per week, and your lawyer certainly doesn’t want $6.67 (one third of your share) each week either. Further, any time the defendant stops paying, you and your lawyer will have to go back to court and start the whole payment procedure over again.
So, if a potential defendant does not appear to have any money or assets, you will find it difficult to impossible to convince a personal injury lawyer to take your case.
Show Me the Money. The only way that a prudent lawyer will agree to take a case against an uninsured driver is if there is some evidence that the driver might have some money or assets hidden away. And before putting a case in suit against an uninsured driver, the lawyer will want to run a credit and asset check on that driver.
Only if the check shows that the driver indeed has some assets will the lawyer take the case and file the lawsuit. In the lawsuit, the lawyer will then try to file a lien against the defendant’s property to try to freeze the assets while the litigation goes on. A lien ensures that the defendant cannot try to hide the money or assets during the course of the litigation.
Filing An Uninsured Driver Claim
A better way to proceed if you are injured by an uninsured driver is to file a claim against your own car insurance company, under your uninsured motorist coverage.
If you have reason to believe that the driver who hit you is uninsured, you should give your insurer notice as soon as possible that you intend to file an uninsured claim against it. Some car insurance policies place strict deadlines on their insureds to notify it of any potential uninsured claims. Don’t delay. If the other driver tells you that he/she does not have car insurance, or, if he/she refuses to give you any insurance information (and you can’t get the insurance information in any other manner), inform your insurer immediately that you intend to file an uninsured motorist claim.
In general, an uninsured claim progresses in the same way as a regular car accident insurance claim, except that the claim is against your own insurance company. An important difference is that, if you and the insurer cannot agree on a settlement figure, you cannot file a lawsuit against your insurer. Instead, you have to go to binding arbitration, which is a more informal procedure than a lawsuit and litigation. If you and the insurer still can’t settle the case, there would be a hearing in front of an arbitrator (or sometimes a panel of three arbitrators), and the arbitrator or arbitrators would make a decision. Unlike a court trial, the losing side in an arbitration has very limited rights of appeal. Basically, the losing side in an arbitration is stuck with the decision. (Learn more about arbitration in a car accident case.)
One important thing to know about uninsured benefits is that those benefits cannot exceed the amount of your primary coverage. For example, if you have $100,000 in coverage for your own potential negligence, you can only have up to $100,000 in uninsured benefits.