Legal Question in Business Law in California

A woman accidentally hit my vehicle and caused it damage. I obtained repair estimates. I then sued for my damages in a small claims court. At the trial, the court ruled that my lawsuit was premature and that I did not have a cause of action against the defendant because I did not first contact her insurance company. The judge dismissed my case without prejudice, so I lost $119 in filing and service fees because of this ruling and now I have to refile my case.

Is the judge's ruling correct? Is a plaintiff legally required to contact a defendant's insurance company in order to have a cause of action against a defendant for property damage? Or is contacting the defendant itself sufficient?

As far as I know, there is no law that states that a plaintiff is required to contact a defendant's insurance company in order to have a cause of action for property damage against a defendant. Therefore, I believe the judge's ruling is in error. Contacting the defendant is sufficient, is it not? Or is the judge correct that a plaintiff must also contact a defendant's insurance company before a plaintiff has a cause of action against a defendant for property damage?

It is my opinion that there is no requirement to contact the defendant's insurance company, and that contacting only the defendant is sufficient. If the defendant does not pay after being contacted, that is sufficient in itself for a cause of action for property damage. I do not have any obligation to go further by contacting the insurance company.

The reason I did not contact the insurance company is because I hate dealing with insurance companies. It is easier for me to sue a defendant in a small claims court than it is to deal with these crooked insurance companies. Easier that is, until this court's ruling.....

Is the judge correct that a plaintiff must also contact a defendant's insurance company before a plaintiff has a cause of action against a defendant for property damage? Or is contacting the defendant itself sufficient? What's the law on this?

I've seen judges make legal mistakes before, so I thought I'd ask Lawguru to see if there is such a requirement to contact a defendant's insurance company, and not just a defendant itself.


Asked on 9/12/12, 2:16 am

3 Answers from Attorneys
Edward Hoffman Law Offices of Edward A. Hoffman

You're right and the judge was wrong. Your claim is against the other driver, not her insurance company. She's the one who is responsible for telling the insurer about your claim. The insurer owes a duty to her and not to you, since she's the one it has a contract with.

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Answered on 9/12/12, 4:43 am
Joel Selik www.SelikLaw.com

I believe you are correct and the judge is wrong.

You might try asking the insurance company to communicate with you via email to lessen the burden of dealing with insurance company.

Do you due dilligence in dealing with the insurance compoany and then sue again. You might also wish to have your insurance company handle it.

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Answered on 9/12/12, 8:00 am
Anthony Roach Law Office of Anthony A. Roach

I agree with the other attorneys. Claims against a third parties insurance companies ended with the California Supreme Court's decision in Moradi-Shalal v. Fireman's Fund Ins. Co. (1988) 46 Cal.3d 287.

Some attorneys would advise you to file a special motion in the small claims court that points out that the judge made an error of law. While the Code of Civil Procedure allows this, from my practical experience, I can tell you that judges hate it when you point out that they made a legal error. As an appellate attorney, I always advise clients to get a new judge when the old one gets reversed on appeal.

At this point you better get a copy of that dismissal, and make sure that it says the dismissal was without prejudice. Then you can try to settle through the insurance company, and if they don't settle, sue the person in a limited civil action. Be sure to get your filing costs back.

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Answered on 9/12/12, 5:06 pm


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