What about my Car, property Damage?
Get Your Vehicle Repaired.
Insurance: Who pays for my property damage? If you have “full coverage” or “collision coverage”, I recommend using your OWN insurance company to handle your property damage. Why? Because YOUR insurance company has a fiduciary duty to do what is in your best interest and give you the benefit of the doubt. In addition, the other person’s insurance companies has 30 days to do a liability (fault) investigation before agreeing to pay for damage to a vehicle. Until liability (fault) has been accepted by the at-fault person’s insurance company, they (the other drivers’ insurance carrier) may not agree to pay for the damages to your vehicle. Your own insurance company will start the repair process immediately.
Rental: If your vehicle is NOT “drivable”, get a rental vehicle. Drivable means safe and road-legal. Do not risk getting a ticket or getting injured driving a defective vehicle. A reputable auto body shop can tell you if your vehicle is “safe” to drive. Safe means not defective and legal to drive on the road. No broken taillights, no hanging bumpers, no crooked or wobbly tires, no fenders rubbing against the tires, no loose parts threatening to fly off the vehicle, no broken glass…. you get the idea. If in doubt, don’t drive your vehicle and risk further injuring yourself or someone else on the road.
Insurance companies will often ask you to rent the smallest and least expensive vehicle. The law does require that you “mitigate your damages”. This is a legal term of art. It simply means you can’t gouge the person who caused the collision, you need to be reasonable. However, if you need a truck to do your job (think landscapers and construction workers), the insurance company should pay for the cost to rent a truck. If you own an SUV because you have large dogs and/or a big family that needs transportation, the insurance company needs to pay for an SUV so that your family can get around.
Loss of Use: If you own a second vehicle, you can use your second vehicle and ask to be paid “loss of use.” A reasonable amount for loss of use might be $25 a day for every day you are without the use of your vehicle. This is based on the average daily cost of renting a vehicle. The rational being, your vehicle depreciates on a daily basis. For every day you are unable to use your personal vehicle, you have been harmed.
Autobody Shop: Take your vehicle to YOUR preferred auto-body shop. You don’t have to use the auto-body shop the insurance company recommends. All reputable autobody shops will guarantee their own work. Often the insurance company wants you to use “their preferred shop” because they have an agreement with that shop to charge them (the insurance company) less money (normally a reduced labor rate) in exchange for sending all their clients (YOU) to a specific shop. This is a potential conflict of interest. You are the client, and the shop should be worried about making you happy, not the insurance company.
You don’t have to get 3 estimates and chose the cheapest shop. However, if the shops rates are not “reasonable” an insurance company could dispute the charge.
Due to the COVID pandemic there has been a shortage of vehicle parts and labor. Like many businesses, auto body shops are understaffed. Vehicle repairs could take as long as 3 months. You may not have sufficient rental car coverage to cover the entire time your vehicle is in the shop. The at-fault party is responsible for the cost of your rental vehicle. If you have the funds, you can pay for your rental vehicle and ask to be reimbursed by the at-fault party. Or you can ask the at-fault person’s insurance company to handle the property damage claim. If you don’t have collision coverage, you may not have a choice but to use the other person’s insurance company to repair your vehicle. The law only requires that you carry “liability” coveragae on your own vehicle. A competent attorney can help guide you through this process.
Diminished Value: If you have a newer vehicle, you may have a diminished value claim. Newer is 5 years old or less. Your vehicle is more than likely worth less money because it was in a collision. Even if the repairs were made correctly. It’s virtually impossible for the shop to replicate factory conditions. (Think about trying to match paint in your own home or a hole in a sweater - it might be close but not perfect.) You should always insist on using original manufacturer parts. For example: If you own a Honda, you want original Honda parts used to repair your vehicle. Those parts will fit your vehicle like a glove.
If you try to sell your vehicle after the repairs have been made, CARFAX vehicle history reports will alert a potential buyer that your vehicle was in a collision. It’s commonly accepted knowledge that a “used” vehicle could have hidden problems. A consumer will pay less money for a vehicle that has been in a prior collision because there are no guarantees the vehicle was repaired correctly. Most “used” vehicles are sold “as is.”
https://www.carfax.com/vehicle-history-reports/
Insurance companies don’t like paying for Diminished Value claims. Often times attorneys need to hire an “expert” to prove that the repairs were not done correctly or that the vehicle is worth less. These experts cost under $1,000 (on average). Attorneys do a cost-benefit analysis to determine if it’s cost effect to pursue this part of the claim.
What if my repairs are not done correctly? When you pick up your vehicle from the shop, inspect your vehicle. Verify the paint tone in good lighting (bright early sunny morning). Look closely at the paint. Verify there isn’t any overspray on windows. Common complaint are alignment, wheel issues or “seals” causing water moisture problems.
Take your vehicle back to the shop and ask them to fix their mistakes. Most all shops guarantee their work. Document your communication. Journal, keep e-mails and text messages to prove you tried to give the shop an opportunity to fix the problem.
Give the shop an opportunity to correct their mistake. If they are unwilling or unable to fix your vehicle or the repairs were clearly done so poorly (gross incompetence), take your vehicle to different shop to get a second opinion. Ask the second shop for a written estimate (how much will it cost) to correct those mistakes.
Call the insurance company who paid for the repairs of your vehicle. Notify them of the problem. Send them the second estimate for repairs. If they sent you to their “preferred shop” they should agree to pay for the repairs. If they don’t, you may need an attorney to recover the cost of those repairs.
In this situation, it would have been better to have used your own insurance company! Why? If the cost to repair your vehicle is $5,000 or less (the average), most attorneys will not take your case against the 3rd party (the other person’s insurance company). Why? It’s not worth their time unless you are willing to pay the attorney their hourly rate. I charge $375 an hour.
There are exceptions, but in most cases, you can not recover attorney fees. Rarely does just writing a letter work. An actual lawsuit will need to be filed to force the insurance company to pay. Rarely do these cases go to trial. In some circumstances, simply filing is enough. If an attorney agrees to help you with a case like this, it’s a “justice” case. Meaning, it’s not worth our time, but an attorney might take it because it’s just the right thing to do. However, a business can go bankrupt taking too many of these types of cases.
HOWEVER, if you had used your OWN insurance company to do the repairs you can recover attorney fees and in some cases treble (triple) damages if your own insurance company refuses to pay for the repairs. This is a tricky area of law to navigate. Consulting with an experienced attorney is crucial. I have friends who love suing insurance companies for “bad faith.” I personally love winning, but I am always sad the insurance carriers won’t do the right thing. It’s a waste of everyone’s time and money.
Total Loss: Your vehicle is a total loss, if it cost more to repair your vehicle than your vehicle is worth. No, you can’t force an insurance company to repair your vehicle if it’s cheaper to pay the “fair market value”. The value of your vehicle is based on the year, mileage, and condition of your vehicle. The insurance company will prepare a “total loss evaluation report” This report will show the comparable data used to calculate the report. The insurance companies are not required to provide this report unless you ask for it.
The report should list comparable vehicles that are currently for sale that you can purchase to replace your vehicle. The purchase price of used cars fluctuates based on supply and demand. Do your own research to determine the fair market value of your vehicle. Look for vehicles that are currently available for purchase that are identical to your vehicle. The offer the insurance company makes should be close to the purchase price of the vehicles you find. The insurance company will reduce or increase their offer based on the condition of your vehicle. Does your vehicle look like a show room model or does it have rips, tears, dents, trash and dirt everywhere? Here is a link to the office of the insurance commissioner that has other helpful information.
** This article is not intended to be a substitute for legal advice. Please consult with your attorney for a personalized evaluation of your case.