Want to Sue for Car Accident? Who are the Right Defendants? Insurance Company? Employer?


It is no secret that you can sue for damages if you are injured and/or suffer property damage by a negligent driver. An everyday person can even bring a lawsuit on their own without an attorney in small claims court. It happens every court day in California, Texas, New York and other states.

When you make your living as a Personal Injury Plaintiff’s Attorney, you always sue as many defendants as possible. You sue everyone who might even be remotely liable for claimed damages, and you expect to sort it out in a trial. But even when you are looking for as many defendants as possible, there are correct defendants, and incorrect ones. After all, you cant logically sue an innocent witness for damages just to make sure they come to court.

But what about the employer? What about the people who made that faulty red light switch? What about the owners of the truck who were not there? What about the auto insurance company who refused to believe you and denied the claim without any evidence?

Picking the wrong defendants can sink your case like an iceberg on a steamy night.


A common mistake among people suing on their own in small claims court is that they sue the wrong defendant. And once that mistake is made, the case is sunk. To help you avoid this mistake, here is a description of who is, and who is not a proper defendant in a common auto accident civil case for damages:

I. Insurance Companies Are Not Proper Defendants in a Typical Auto Accident Civil Case.

When a driver is injured or suffers property damage in an auto accident, he/she can get a judgement for money damages in court if they can prove that the damages were the result of someone’s NEGLIGENCE.

Negligence means someone breached a legal duty and caused damages.

A very common error in small claims court that sinks an otherwise seaworthy case is that of the Plaintiff suing the other driver’s insurance company. It seems to make sense at t first. The other driver owes you, admits to it, and the insurance company refuses to pay. Sue the insurance company, right? No.

The auto insurance companies are not the negligent party in an auto accident case because they were not present at the accident. The insurance company was not driving, and did not own the car that hit you. As a result, a Plaintiff in court cannot prove that the insurance company was negligent, and cannot prove that the insurance company caused the damages. Plaintiffs in this situation generally cannot get a judgement for damages against the auto insurance company.

The insurance company may have to pay in the end. But they are not the defendant in court. if there is an award of damages against someone that the insurance company is obligated to reimburse for damages by a contract called a “policy”, the insurance company may have to pay in the end. But the insurance company was not negligent, did not cause damages and therefore is not a proper party in the case.

So who is the proper defendant to get your property damages and medical bills paid? And your lost wages? And your rental car expenses? And repayment for that $7 carmiatto that was smashed into your face when that wrucker hit you from behind?

II. The Other Driver is Always Liable for His or Her Own Negligence.

When an injured driver has to sue in small claims court, or even in unlimited jurisdiction courts, the driver who is believed to be negligent should always be sued. Leaving the negligent driver out of a case and suing an insurance company or someone else instead is a bad idea.

But the other driver is not the only other proper defendant.

III. Other Drivers Who May Be Partially At Fault Are Proper Defendants.

If there was a multi car accident and there may be more than one person at fault, it may be a good idea to sue all of the drivers who may have some fault and sort out the liabilities in court mediation or a small claims court trial. The plaintiff is not required to know exactly who caused the accident. As long as the Plaintiff has a good faith believe that the other drivers sued had some faulty, they can be defendants. And their testimony in court may help you collect from the primary tortfeasor (negligent driver mostly at fault. Yes, it is a real word).

IV. Registered Owners of a Vehicle in an Accident Can Be Defendants Even If They Were Not Present.

In nearly all states, including California, the law makes the registered own of a vehicle liable for all damages caused by a negligent driver in that vehicle upto a certain limit. The negligent driver is on the hook always, and so is his mom if she is the registered owner.

V. Employers Are Proper Defendants in an Auto Accident Case.

If a negligent driver who is driving in the course and scope of his work hits you and causes you damages, you can sue the Employer. The legal theory for this “vicarious” liability of the employer is called “Respondeat Superior“. It basically means that the employee is an agent of the employer while working, and them employer is liable for the action of the employee while working. There are exceptions, but that is the rule and it makes the employer a proper defendant even though they might have been present at the collision.

What if the employee was off work, but driving a company truck? If the registered owner was the employer, the employer is a proper defendant.

VI. Other Possible Defendants in a Car Accident Case Include Manufacturers, Construction Workers, etc.

If you were rear ended at an intersection, you can sue the driver who hit you. But you can also sue other negligent parties who may have contributed to the collision. Who might they be?

Well, say the reason you had to slam on your brakes that day was because some bone headed construction worked installed the new stop sign on backwards! You saw it, but at the last second. You stopped in time, but the driver behind you could not, and never saw the sign he/she should have seen had it been correctly installed that night at 2am.

Under those facts, who installed that sign and their employer are proper defendants.

VII. The More Defendants You Have, the More Insurance Companies You May Have Covering the Claim.

If a proper defendant loses a civil case for car accident damages, there will be a court judgement against that defendant. But if that defendant was covered by liability insurance for that judgement, that insurance company is legally obligated to pay that judgement for the defendant named on it.

Thus, even though auto insurance companies are not proper defendants in a typical auto accident case, they are super important players. They are the ones who decide to fight or just pay a claim, and they are the ones you will have to try to settle the case with before there is a trial.

And here is the secret of the day: The more insurance companies there are with exposure on the claim, the easier it is to get a claim settled. Get everyone to pay a little, instead of getting one insurance company to pay it all.

Questions? Leave a Reply below.

Warning. All of this may be wrong. None of it applies to your case.


About Attorney Christopher Dort

Public Interest Attorney. CA State Bar #196832. Licensed to practice law in California 1998, and then the US Federal District Court in 2000. Civil Litigation Trial Attorney (Insurance Defense Firms) 2000-2003. Private practice 2003 - present. First Solo Criminal Jury Trial 1998 (Santa Cruz County). First Civil Jury Trial 2002 (Orange County). Santa Cruz County Public Defenders Office 1996-1999 (law clerk). BA in Politics from UC Santa Cruz, 1995. JD, University of California, Hastings, 1998.
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