Small Claims - Plaintiff

Motor Vehicle Accidents

All car accidents involving any injuries, no matter how small, should be discussed with a Plan Attorney immediately, if you are a member. After review, your attorney may suggest that you bring your case yourself in Small Claims. But you should always know that these cases involving injuries need the attention of a Plan Attorney, and most Plan Attorneys will review these cases without any charges to you. Also, time limits are often very short in accident cases and it is critical to discuss any accident with your Plan Attorney immediately.

If your case involves only vehicular damages or if your case was suggested to be in Small Claims Court by an attorney, the following should be helpful. First, if you are in accident, you should obtain the names and phone numbers of witnesses. You should also take pictures or get someone to take pictures of the scene. The pictures can be taken later if no camera is available, but it will help to have pictures of the scene.

Also, take pictures of the car damage. Obviously, you should obtain the other person's car license number, model, insurance information and any passenger information. You should determine if any parties are injured at the time.

Be certain to watch for the situation where you were hit by a negligent driver who had passengers in his car. For example, you believe you are clearly right and you obtained information from the passengers that they were not hurt. The driver refused to pay your damages and you sue. Soon you are sued in a lawsuit saying all of the passengers are now injured. These situations are frequent, and the best way to prepare for such a problem [although it can never be prevented] is to obtain statements from the passengers saying they were not hurt. Also get witnesses to testify that those passengers did things at the scene that made them look uninjured.

Of course, your defense in this situation is to argue that the passengers were injured by their own driver, but this point was made to demonstrate the importance of protecting yourself as soon as possible. Even telephone calls to the passengers the next day, if they will talk to you, to confirm that they were not injured might help. Also, if there is any question of injuries, you may be forced to notify your insurance company if a claim might exist.

Remember, you must prove that the other party was negligent. Just because two cars collide does not mean only one person is necessarily negligent. They both may be. You should be prepared to prove that you were not at fault. You may have to interview the witnesses after the accident and determine if they will support your case. If so, they should be subpoenaed and come to court to testify for you.

If a person refuses to give you information at the scene, you can get the serial number of the car, the license number, and a description of the car. Call the State Department charged with regulating motor vehicles. They can usually provide you with the name and number of the owner and the insurance information.

One word of caution. Today, it is becoming commonplace for persons involved in car accidents with injuries to try to handle the matter and the settlement of the case themselves without the services of an attorney. Time and time again cases come to attorney's offices just prior to the expiration of the Statute of Limitations or after the adjustor has failed to give a meaningful offer of settlement.

If you have an accident with injuries no matter how small, you should consult with your Plan Attorney immediately, if you are a member. There is much investigation and preservation of evidence which can be done right away. If you wait, that evidence may be lost. For example did you know that 911 tapes may be reused after 30 days in some areas? Wouldn't it have been nice to have a copy of a 911 tape where the person who is claiming he was not at fault in court told the police the accident was his fault on that day? While opinions may vary on this subject, you will rarely help your case in the long run by delaying contacting an attorney until months after the accident.

Points to Remember

• Car accidents involving injury should be discussed with a Plan Attorney immediately.
• Obtain the names and phone numbers of the witnesses.
• Take pictures of the accident scene and the damage to the cars.
• Get signed statements from the passengers indicating they are not injured.
• You must prove the other party was negligent.

Property Damage Claims

What happens if you suffer property damage? For example, assume your neighbor is cutting his lawn and a stone flies up and breaks your stained glass front door window.

In order to sue your neighbor, you must prove the window was intact. But here, the problem may be that the window is several years old and you do not remember how much you paid for it. You should shop around and obtain estimates of the replacement of this window. Three estimates is usually the rule and while you should always seek the highest amount, you should not be disappointed if the judge awards you the middle or lowest amount.

Also, you ought to have an expert, perhaps one of the persons who gave an estimate, give you an opinion as to how old the door window was and what the value was at the time of the break. The defendant may argue that the door window was faded and old looking and he could not even tell it was stained glass. Pieces of the actual door would also be helpful.

In any such property damage cases, the key is going to be the cost of repairs or replacement subtracting the current depreciation. Often this is not a scientific figure, but it will be considered by the judge. Judges do not always believe that you should receive a new door to replace a twenty year old door, just because your neighbor's lawn mower threw up a stone.

Also be aware that you will have to prove what caused the stone to come through the door. Expect your neighbor to argue that a bus was passing at the same moment and the bus threw up the stone, or a similar type of defense. Witnesses and testimony from store personnel who sell the type of lawn mower used by your neighbor may help.

Remember that all of this information is general in nature and is not designed to consider every possible set of facts imaginable. This discussion is simply an overview of the most common areas of concern in bringing lawsuits that are overlooked or misunderstood.

Points to Remember

• You must prove that the property was not damaged prior to the incident.
• Get three estimates on the repairs.
• You may be awarded the cost or repairs or replacement minus the current depreciation.
• You must prove that the defendant is the cause of the damage.