The other driver's insurer will not return calls, and your delivery income is suffering

Attorney Answer

The other driver's insurer is ignoring you, but your claim is against the driver, and you can take it to small claims court yourself if the insurer will not deal with you. What you can claim generally includes the reasonable cost of the repair and the income you lost because the car was out of service, if you can document it. Before that, put the claim to the insurer in writing: California's fair-claims regulations give it set deadlines to respond and decide, and the Department of Insurance takes complaints when it misses them.

What the driver owes. Cal. Civ. Code § 3333:

For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this Code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.

That generally covers the repair or, if the car is not worth fixing, its value, plus losses that follow from the damage, such as tips and delivery income you could not earn while the car was out of service. Lost income has to be proved, so records from before and after the crash matter.

Small claims. Cal. Code Civ. Proc. § 116.221:

In addition to the jurisdiction conferred by Section 116.220, the small claims court has jurisdiction in an action brought by a natural person, if the amount of the demand does not exceed twelve thousand five hundred dollars ($12,500), except as otherwise prohibited by subdivision (c) of Section 116.220 or subdivision (a) of Section 116.231.

You represent yourself there; lawyers generally do not appear for either side.

Holding the insurer to its deadlines. California's fair-claims regulations apply to a claim against another driver's insurer, too. Cal. Code Regs. tit. 10, § 2695.5(e) gives an insurer no more than 15 calendar days after notice of a claim to acknowledge it, provide forms and begin investigating; § 2695.5(b) requires a complete response to a claimant's communication within 15 calendar days; and § 2695.7(b) requires it to accept or deny the claim within 40 calendar days after proof of claim. If it misses those deadlines, file a complaint with the California Department of Insurance.

Your employer. You were on a delivery and clocked in when the crash happened. Cal. Lab. Code § 2802(a) requires an employer to indemnify an employee for “all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties”. Whether damage to your own car on a delivery is a loss your employer must cover depends on the facts, so ask in writing.

What you can do

1. Send the other driver's insurer a written claim with the repair estimate, photos of the damage and a record of the income you lost, and keep a copy with the date you sent it.

2. Keep a log of every call to that insurer: the date, who you spoke with and what was said.

3. If the insurer does not acknowledge or decide the claim within those deadlines, file a complaint with the California Department of Insurance.

4. Gather proof of lost income: tip records, delivery logs and pay statements from before and after the crash.

5. Get the police report if one was written, and check whether the accident report to the DMV was made; Cal. Veh. Code § 16000(a) requires one within 10 days when damage to anyone's property exceeds $1,000 or anyone is hurt.

6. Tell your employer in writing about the damage that happened on the delivery and ask whether it will reimburse it.

7. If the insurer still will not deal with you, consider small claims against the other driver.

8. Most lawyers offer a brief initial call at no cost, and a few minutes on your specific facts is worth more than any general guidance, including this page.

⏱ Time limits apply. Cal. Code Civ. Proc. § 338(c)(1) allows three years to sue for damage to property such as a car. When your time started depends on your facts, so have a lawyer confirm it rather than counting it yourself.