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can i sue for a car accident if the at-fault driver died in the crash?

can i sue for a car accident if the at-fault driver died in the crash?
Axelrod & Associates, P.A.

How do you get compensation for a car accident if the at-fault driver died in the crash?

Although it is tragic that they lost their life, and we should show empathy for the deceased driver’s family, the at-fault driver is still responsible for the damage that was caused by their negligence.

But how? Who do you sue?

Below, we will cover the basics of what happens when the at-fault driver dies in a car accident, including:

  • Making a claim against the deceased driver’s insurance company,
  • Stacking insurance policies when the policy limits do not cover your damages,
  • Filing a lawsuit against the deceased driver’s estate, and
  • Showing compassion for the deceased driver’s family while still demanding full and fair compensation for your injuries.


In some ways, filing a car accident claim against a deceased driver is no different than filing a claim in any other case. If the insurance company refuses to pay, however, the procedure changes and you must file suit against the deceased driver’s estate.

First, Make the Claim Against the At-Fault Driver’s Insurance Company

If liability and damages are clear, the deceased driver’s insurance company should pay your claim up to the policy limits, regardless of whether their insured survived the crash.

Like any other car accident case, your attorney will investigate the crash, put together evidence of liability and documentation of your damages, and demand that the deceased driver’s insurance company pay full and fair compensation for your injuries. Your attorney will then negotiate as needed to reach a settlement for full compensation or the policy limits.

What if their Insurance Policy is Not Enough?

In some cases, the at-fault driver simply did not purchase enough insurance coverage to pay for the damage that they caused.

At the outset of your case, your attorney on the Axelrod team will investigate the crash to determine all responsible parties and identify all insurance policies that are on the hook to pay your damages, and SC law allows you to “stack” multiple insurance policies to arrive at full compensation, including your own UM and UIM policies.

If you purchased sufficient uninsured motorist (UM) and underinsured motorist (UIM) coverage, your policy should pay the difference up to your policy limits once all other policies have been exhausted.

If the deceased driver’s insurance policy limits are not sufficient to cover your damages, your attorney may also make a claim for payment of any judgment against the deceased driver’s estate in probate.


What happens when the at-fault driver’s insurance company doesn’t pay your valid claim?

When it becomes clear that the insurance company is not going to pay your claim, you will need to file a lawsuit to ask the court to force them to pay. In most cases, this is accomplished by 1) drafting a complaint and 2) serving it on the at-fault driver (and their insurance company).

In most cases, the insurance company will then retain an attorney to defend the case and you can continue to negotiate a settlement as you litigate the issues and prepare for a possible trial.

If the at-fault driver died in the crash, we can still file suit, but we must name the at-fault driver’s estate as the defendant and serve your lawsuit on the personal representative for their estate.

The insurance company is still obligated to defend the lawsuit, and they are still obligated to pay any verdict or settlement – the only difference is the lawsuit names the estate rather than the individual who died in the crash.

What About the Deceased Driver’s Family?

If you were involved in a crash where the other driver died, you might take pause, considering the effect of the lawsuit on the deceased driver’s family – on top of losing their loved one, making funeral arrangements, and the tragedy of the event, now they are being served with a lawsuit…

It’s okay to feel compassion for the deceased driver’s family – the crash was not their fault, and they are suffering just as you may be suffering from your injuries or even the death of a loved one in your vehicle.

It’s also okay to demand full and fair compensation from the estate of the driver who caused the crash, however. For the most part, your attorney will be dealing with the insurance company and their attorneys, and the personal representative of the deceased driver’s estate will have minimal involvement in the case.

It’s okay to both 1) show compassion for the other side’s family and 2) demand full compensation and accept nothing less.


Your Myrtle Beach auto accident lawyer on the Axelrod team will investigate your car crash, help you to determine who is responsible, and find all possible sources of recovery to get maximum compensation for you whenever possible.

Call today at (843) 916-9300 or fill out our contact form to set up a free initial consultation to discuss your case.

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