Auto Insurance Claims: Claim Denial 50/50 Liability, Small Claims Court Help

Question
My son was pulling a piece of farm equipment from my farm to his just a couple blocks away (round hay bale carrier wagon-empty). A young girl speeding from the opposite direction lost control on the curve and hit the hay wagon breaking it in half, crossed the road and ended up in the ditch on the opposite side. Police were called and made out the report that she had Misjudged Clearance.  The road has no line down the middle and no speed sign posted, but it is a county road. My son's truck was insured, but his insurance said they would only provide liability on the hay wagon, so since it was not insured separately, they could not help.  Farm equipment is not required to be insured, and it was the girl's fault anyway.  Her insurance company (Geico), initially sent out an adjuster who was prepared to write out a check that day for up to $2000.00.  The round bale carrier wagon would cost more than that to replace.  It went to another adjuster who now refuses to pay anything saying she investigated the accident and determined it to be a 50/50 liability.  The bale wagon was mine, not my sons.  It was not mentioned initially to the insurance company in order not to complicate matters, but since my son did not know what to do when they refused, I took over and told them it was mine.  I sent them estimates for replacement of the wagon totaling $4,775.00.  I also sent them pictures of the accident my son took at the scene showing her vehicle in the ditch on the opposite side of the road, my sons truck on the right side hugging the ditch with half of the wagon still attached and the other half of the wagon in the ditch on the right side.  She said she would reinvestigate the accident.  I thought the pictures and estimate would prove the case, but she just came back with the same 50/50 liability.  It happened in Bonnieville, Kentucky next to my farm.  Any suggestions.  And if we needed to go to small claims court to recover the cost of the wagon, would we take the girl to court or the girl and Geico?  And would my son have to take her to court since he was pulling the wagon, or would I take her to court since I own the wagon, or both.  Please advise as the insurance company isn't budging.

Answer
Donna,

   Okay, I'm sorry for the delay, it is unusual, just look at my average response time, anyway. ..

   Unfortunately, I cannot give you legal advice, so here's the best I can do in lieu of that. . . Small claims is probably going to be your only viable option, but it is tricky.  You need to find somebody (attorney) that can assist you with getting the paperwork filed properly and with preparing for a potential trial.  The problem is that if the at fault person is legally a minor, it is generally not allowed to sue a minor, and you would have to sue them in the proper capacity (called a "friendly suit" in many places).  It gets a little complicated, and so you can see why GEICO doesn't think you can do anything about their refusal to accept liability on behalf of their insured.  It is perfectly fair for them to argue that your son could have paid better attention (proving it is hard, but just arguing it makes a jury think).  My suggestion is to find an aggressive attorney to assist you and pursue the case based on principle.  Most people are not satisfied with the way they are treated when they have a small claim (< $8K), and I think it is because many claims departments (not saying GEICO does this) bully individuals by simply refusing to play fair or taking an absurd position.  It leaves the victim in a position of helplessness; ie either you find an attorney (who will take part of your winnings, or charge you over $100.00 / hour), or you take your chances in small claims court (and possibly (probably) get confronted with a motion in limine restricting the mention of insurance, and get propounded with discovery, or forced to costly mediation), or you give up and go away.  Most victims will give up and go away and insurance companies know it.  Are you part of the solution?  Are you one that is going to go away?  By the way, you have to sue the negligent person, and nobody else.  If the driver is known to be reckless and you can prove it, then it is possible you could also sue the owner of the vehicle (if not the girl) for negligent entrustment, but that gets tricky, too.

Again, I am sorry for the delay, and I hope this helps.  Information is always free at Petty Details, LLC   

Regards,
Justin Petty