What are options if driver is uninsured?

Dear Dale: My brother recently was injured in a car accident. The other driver caused the accident, but she didn't have any insurance. I want to know what my legal options are against her, and I want to know whether I can recover the insurance deductible I paid.

Injuries from a car accident are tough enough to deal with, but when the at-fault driver doesn't have enough insurance — or any insurance — the situation becomes far more stressful.

That's why I always encourage people to add uninsured/underinsured motorist coverage to their policies. It's amazing how many people drive without having any insurance. And Ohio only requires drivers to carry a minimum of $12,500 in liability coverage, which wouldn't come close to compensating someone seriously injured in an auto accident.

The state legislature should act to raise that ridiculously low minimum requirement, but drivers should protect themselves by spending a few more bucks on their insurance to add uninsured motorist coverage.

Many drivers opt for the minimum coverage as a way to save a few dollars. Nobody wants to spend extra money when they don't have to, and I certainly understand the devastating effects the economy is having on people. But not having adequate insurance can cause financial pain to both the at-fault driver and the injured person.

An at-fault driver without adequate insurance faces the exposure of losing personal assets if a judgment exceeds the limits of the insurance policy. For example, if a jury awards a $100,000 judgment to an injured person, and the at-fault driver's insurance limits are $12,500, the at-fault driver could have to pay the difference. Unless the at-fault driver is sitting on a pile of cash or other significant assets, the driver may be forced to declare bankruptcy. And, in that scenario, the injured driver still doesn't get fairly compensated.

In your situation, it sounds like you had uninsured motorist coverage because you referenced a deductible. If your goal is to recoup the deductible you paid to your insurance company from the woman who caused the accident, you have a few options. You could call her directly and ask her to write you a check. But, if she didn't have insurance, there's a decent chance she's strapped for cash. It's possible, though, that she simply forgot to renew her policy and that she has some money.

If the direct approach doesn't work, you could file a lawsuit against her in Small Claims Court. The court fees associated with that type of action are relatively low and the process of filing the claim is fairly simple. You'd have to decide whether to spend the money on a lawyer to handle the case for you, but that could chew up — or exceed — the cost of the deductible.

Whether or not you represent yourself, or you have a lawyer, let's assume that you win your case. Now you're stuck having to collect on your judgment, which isn't easy to do if the other driver doesn't have any money. You could turn it over to a collection company or attempt to garnish the at-fault driver's wages (if she works), but that takes even more time and energy.

So, you have to decide whether recouping the deductible is worth the time it would take to pursue it. If the woman who injured your family member doesn't respond to you, maybe a lawsuit would get her attention. You may want to approach the situation by assuming you won't see any money from her, but if you get something from her, great. In other words, hope for the best, but expect the worst.

Dale Emch practices law at the Dale Emch Law Office, LLC, in Toledo. In his column, he will discuss general legal principles and answer readers' questions. Neither Mr. Emch nor The Blade present or intend his column to be taken as legal advice. Readers seeking legal advice should consult with an attorney. Readers may send their questions to 615 Adams St. Toledo, OH 43604 or dale@daleemch.com. His Web site is www.daleemch.com.