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At least once a week, someone asks us if they should sue the driver directly or file an insurance claim in their Virginia car accident case. There is a bit of confusion here because typically the other driver's insurance company is the one paying your medical bills and property damage. It seems like the drivers themselves are not paying for the disruption they caused in your life. To understand this process, we need to explain a little about Virginia insurance law.

Are You Suing the Driver or the Insurance Company?

First, when you are in a car accident, you typically talk to two insurance companies - yours and the other driver's. You need to speak to the other driver's insurance company so they can pay for your claim. If it turns out the other driver didn’t have enough insurance to cover your claim, you speak to your insurance company so you can also file a claim on your Uninsured or Underinsured Motorist Policy (UIM) (assuming you have sufficient coverage).

For all intents and purposes, you don’t even speak with the at-fault driver. Instead, you are dealing with their insurance company. It can seem a bit unfair because it was the other driver who hurt you, not the adjuster. There is knee-jerk reaction to want to punish the person who caused the accident. However, people forget that we are paying insurance companies to act for us in these situations.

If the at-fault driver's insurance company fights your claim, then your attorney will file a lawsuit to prosecute your case. To be clear, in Virginia, you will actually file suit against the at-fault driver.  And, under Virginia law, their insurance policy will then require their insurance company to provide them a defense attorney and ultimately (if you prevail) pay you up to the at-fault driver’s insurance limits.

What If the Other Driver Has a Small Policy, Or No Insurance at All?

If it turns out that the at-fault driver does not have insurance (or lacks enough insurance) to cover your claim, you can seek funds from your own UIM policy. It may seem unfair that your insurance company has to get involved at all because the other driver is responsible. But your UIM policy is a “no-fault” policy, which you paid for to protect yourself for this very situation – you’re injured by a negligent driver that lacked the responsibility to even buy enough insurance to compensate the person he hurt. 

If it turns out that both the defendant’s insurance coverage and your UIM limits are insufficient to compensate you for your injuries, you do have the option of pursuing funds directly against the at-fault driver from their personal assets. There’s nothing wrong with doing this. However, here at BenGlassLaw, we don’t often pursue this option (unless we have a specific reason to believe the at-fault driver has significant personal assets) because we end up being unable to collect any funds from that driver. In reality, if the other driver has no insurance or very little insurance, in our experience, we’ve not been successful in obtaining funds from their personal assets.

What if I Prefer to Sue the Driver Directly Than File an Insurance Claim?

To be clear, when you file suit, you will pursue a civil lawsuit against the at-fault driver. It’s simply that by him purchasing auto insurance, he’s protected himself up to his limits. And by you purchasing UIM, you’ve also protected yourself. While there may be an emotional desire to “stick it” to that negligent driver, at the end of the day, insurance funds are the easiest and smartest way for you to be compensated for your injuries. 

Ben Glass
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Ben Glass is a nationally recognized ERISA disability & life insurance attorney in Fairfax, VA.