Legal Question in Insurance Law in California

You can't sue the other person's insurance company. They owe you nothing. Insurance companies settle with you on behalf of the other driver because they have a duty to their insured to defend or settle. They have no legal obligation to you of any kind and you have no legal rights against them. You have to sue the driver.

You can't (successfully) sue the other driver's insurance company. It didn't hit you, and it doesn't have a contract with you. You can only sue the other driver.

If her insurer has already paid you, then it almost certainly insisted you sign a release. If so, the release would prevent you from suing the driver unless somebody did their job wrong.

If the insurer hasn't paid you, then you need to sue for the entire amount of your loss. If you only claim the difference between the policy limits and the amount of your damages, then that is all you will be entitled to collect.

The limit in small claims court is $10,000. If your damages are much more than that, you may want to reconsider going to small claims. (If your damages are only modestly more than $10,000, it may make sense to forfeit the rest in order to get into small claims court and avoid the cost and effort of a regular lawsuit.)

Let me try to clarify these points with an illustration: If your damages are $20,000 and the other driver's policy limits are $15,000, you might think you could sue her for $5,000 in small claims and still collect the insurance proceeds. You would be wrong. If all you sue her for is $5,000, then that is all her insurer will pay you -- and even then, only if you win. Alternatively, if you sue her for the full $10,000 jurisdictional limit, that is all you would be able to get. Either way, you would be better off accepting a $15,000 payment from the insurer.

Of course, I don't know what your damages are or how much insurance the other driver has. I also don't know how much the insurer has offered you to settle your claim. A small claims case might make sense in your situation. But you should consider whether it does before you file.

Good luck.

You sue the person who hit you. Make sure you include rental car