Filing a Car Accident Counterclaim

When you're sued for causing a car accident but you think the other party is actually responsible for the crash, you typically have the option of filing a counterclaim seeking your own damages.

By , J.D. | Updated By David Goguen, J.D.
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  • After a car accident, when the other driver claims that the crash was your fault, and they file a car accident lawsuit against you, one of your options may be to file a counterclaim in which you make allegations of your own -- that the other driver actually caused the car accident, for example -- and ask the court to award you your own remedy (that means compensation for your injuries, vehicle damage, and other losses). Read on to learn more.

    Counterclaim Basics

    A counterclaim is a legal claim that the defendant in a lawsuit (the person being sued) can file against the plaintiff (the person who filed the original lawsuit).

    A counterclaim is not a separate lawsuit, and the allegations in it must usually relate to the subject matter of the original complaint -- so it must pertain to the traffic accident and not some other legal dispute -- although there can be exceptions, which we'll touch on below.

    Counterclaims in Car Accident Cases

    Here's how the standard counterclaim arises in a car accident lawsuit:

    • Ann and Betty get into a crash at an intersection
    • Ann sues Betty over the accident, claiming Betty was negligent in connection with the crash, and
    • Betty thinks Ann was actually at fault for the accident, so she files a counterclaim against Ann.

    Assuming that Betty has car insurance, her insurer will likely handle all aspects of the counterclaim, since it's likely that the insurer has already appointed a car accident lawyer to defend the lawsuit in court. In fact, it is generally the car insurance company, and not the driver, who will decide if a counterclaim should be filed at all. If the driver wants to file a counterclaim, but the driver's insurer does not think it's appropriate, no counterclaim will likely be filed.

    Let's take a closer look at how the counterclaim in a car accident case will work, in the context of Ann's lawsuit against Betty. The lawsuit begins with the service of the Complaint and Summons by Ann (the plaintiff) on Betty (the defendant). In many states, Betty will then have a short period of time, possibly four weeks, to determine whether she wants to file a counterclaim. If Betty decides to file a counterclaim, she must file an Answer to Ann's Complaint with the court, and then file the counterclaim with the court.

    Discovery (the pretrial investigation process) will then begin on both the Complaint (Ann's original lawsuit) and Betty's Counterclaim. During the discovery process, both parties will investigate one another's allegations. Keep in mind that the parties are entitled to conduct discovery on the allegations of Betty's counterclaim just as if it was a regular lawsuit.

    Counterclaims During a Car Accident Trial

    Let's say that the parties complete discovery and conduct mediation, but the settlement negotiations fail. Now they have to go to trial. Let's look at how a trial proceeds when a counterclaim is involved.

    The evidence on the counterclaim is generally heard at the same trial in which the evidence on the main lawsuit is heard. The major difference between presenting evidence on the main lawsuit and evidence on the counterclaim is that it is the defendant (Betty) who has the burden of proving the allegations of the counterclaim (remember that the counterclaim is an independent legal claim, not a defense).

    In any trial, the plaintiff will make the first opening statement to the jury. Then, the defendant will make an opening statement. After the opening statements, Ann (as the plaintiff) presents her evidence (calling witnesses, entering documents and diagrams into evidence, etc.) first. After Ann has finished presenting her evidence, Betty will present her evidence on both the original Complaint (defending against Ann's allegations) and the Counterclaim (proving her own allegations against Ann, including the nature and extent of Betty's damages). After Betty finishes presenting her evidence, Ann will then have a chance to present additional evidence in response to Betty's case.

    Finally, the parties will make their closing arguments. The defendant usually goes first and the plaintiff last, although, in some states, the plaintiff goes first, the defendant goes second, and then the plaintiff has the chance to have a short rebuttal.

    The judge's instructions to the jury and the jury deliberation form are more complicated when there is a counterclaim. In a regular car accident case, the jury simply decides if the defendant was negligent, and, if so, they next calculate the plaintiff's damages. When there is a counterclaim, the jury has to decide whether each party was negligent -- and if so, to what extent -- plus determine what each party's damages were. In order for the jury to understand what it is doing, the judge has to give additional instructions to explain exactly what a counterclaim is and who has what burden of proof.

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