Legal Question in Personal Injury in California

I had a scary accident in the end of September were I was traveling to work when a young boy on a bicycle swerved out of the bike lane into the middle of the road and I hit him. The speed limit was 45 mph and I was traveling about 40 mph. I seen him start to weave around and took caution and slowed down to about 20 to 25 mph. He then swerved into the far left of my lane and I swerved into the oncoming traffic lane to try to avoid him but struck him with my passenger side of my vehicle. Fortunately the boy was not severely injured and I called 911 immediately and reported the accident. His father picked him up and took him to the hospital before the police came (which took a hour) and I waited with several witnesses who were comforting me and letting me know that there was nothing I could have done. The California Highway Patrol finally showed up and with the witness statements and his discretion found me not at fault. I reported the indecent to my insurance company immediately and let them know of the damage that occurred to my vehicle. The boys parents have filed a personal injury claim to my insurance and they are waiting on the police report to arrive to them to know how to proceed. My insurance told me if I was not at fault then they will not payout the claim. I have severe damage to my vehicle and I only had basic liability on my coverage. I am very distressed, had trouble sleeping, scared to drive and have been in a state of shock the last few weeks and have scheduled a appointment with a psychologist for help with the issue. Now I am faced with the fact that I have to sue his parents for the damage to my vehicle which is very disturbing to me seeing is that I hit there child, but I have no other way of recovering the damage for my vehicle. My question is do I get a lawyer? Am I able to recover the attorney fees if I have to get a lawyer? What kind of case is this and what are my rights?
Any response or advice is greatly appreciated and I thank you for reading my post
Joe,

Asked on 10/05/10, 8:46 pm

2 Answers from Attorneys

Tony Carballo Carballo Law Offices

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It is hard to imagine that your car could have sustained severe damage hitting a bicycle but I suppose it is possible. Most likely you will have to sue the parents in small claims court because it is unlikely that a lawyer will take your case on a contingency basis (no win, no fee) and the lawyer's fees will be prohibitive. You might have problems collecting even if you win and the liability of parents is limited by law. The fact that the CHP determined that the minor was at fault is not the final word on that issue. Liability may have to be determined by a judge or jury. You and the witnesses would have to testify and sometimes experts on accident reconstruction must be hired to testify. I guess what I am suggesting is that unless you take the matter to small claim and sue there for the maximum of $7,500 it is unlikely you will get a lawyer to represent you. You can try small claims but even if you win you may or may not be able to collect on the judgment depending on their assets and income. In the meantime it appears that the minor will be suing you for damages so you might be forced to cross-complain against the parents if the sue you for damages. If you are sued your insurance company will hire an attorney to defend you but that attorney will not help you with your claim against the minor's parents. Good luck.

Answered on 10/10/10, 9:33 pm

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