About Your Property Damage Claim
YOUR PROPERTY DAMAGE CLAIM
Because you were involved in an automobile accident and injured as a result, you more than likely have experienced damage to your personal property as well. In addition to requiring medical attention and treatment for your injuries, you also have to repair or replace your vehicle as part of the ongoing aggravation you are likely to experience as a result of this accident. You do not necessarily need a lawyer to handle this portion of your claim. If litigation is necessary to pursue the property damage portion of your claim, our firm cannot initiate litigation until you have recovered completely from your injuries. Therefore, it is in your best interest to become familiar with the property damage aspects of your claim in order to quickly resolve these issues.
REPAIR OF YOUR VEHICLE
The most common element of your damages will, of course, be the repair of your vehicle. You have the right to take your vehicle to any repair shop and to have your vehicle repaired there. While your insurance company may argue that you must take your vehicle to one of their "approved repair facilities," this is not always the case. You must consult the language of your insurance policy to determine whether this is a mere suggestion by your insurance company, or an absolute policy requirement.
Once you have selected a repair facility, you must notify an insurance company of the location of the vehicle. The reason I say an insurance company and not your insurance company is because it is always best to pursue your property damage claim with the "at fault" driver's insurance company. This is because the “at fault” driver's insurance company will not charge you a deductible. Also, pursuing your claim through the at fault driver's insurance company allows you to recover your loss of use and diminution of value claim with less hassle than your own insurance company.1
When the “at fault” driver has property damage insurance, it is best to notify them immediately of the claim and to make contact with their property damage adjuster. Please be sure that the property damage adjuster is not the same adjuster who will be assessing your bodily injury claim. One simple question to ask the adjuster is "Are you handling the BI (bodily injury) portion of my claim?" If the answer is "yes," be careful not to discuss your injuries or treatment with the adjuster. Speak only about the property damage portion of your claim. If he or she is not the BI adjuster, it is still best not to discuss any other aspect of the claim, except the property damage. Notify the property damage adjuster of the location of the vehicle and insist that they send an appraiser there immediately. Although you may have received an estimate from the body shop, it is the insurance appraiser that the insurance company is most likely to authorize repair from. Once the at fault driver's insurance company has appraised the vehicle, they will authorize repairs
If the at fault driver's insurance company does not admit liability (i.e. say it's their fault), do not waste any time and pursue your property damage claim through your own insurance company. The worst that happens is that you will pay your deductible up front and be reimbursed for it later when your insurance company subrogates (seeks reimbursement from) at fault driver's insurance company. If you wait for the at fault driver's insurance company to accept liability, you may jeopardize part of your loss of use claim because you “unreasonably delayed” in repairing the vehicle. You will know early on whether the at fault driver's insurance company accepts responsibility. If they do not accept liability, you should contact your insurance company if you have collision coverage and pursue the property damage portion of your claim through your own insurance company. This should not raise your rates if the accident was not your fault. It is simply a more convenient and time saving way to have your vehicle repaired and get you back on the road.
If the vehicle is not driveable, you should ask the property damage adjuster what car rental agency they have an agreement with to provide you with a rental vehicle during the time that your car is inoperable due to damage. Please note that if you are simply having a bumper refinished and the car is capable of being driven, you do not get a rental car until the vehicle actually enters the shop. If the car is not driveable, you are entitled to a rental vehicle from the date of the accident until your car is either repaired or replaced.
LOSS OF USE
Loss of use refers to the inability to drive your car and the expenses necessary to facilitate your transportation. This does not mean that you have to actually rent a vehicle or pay another to drive you. It simply means that you have been deprived of the "loss of use" of your vehicle and are entitled to reimbursement. Reimbursement is measured by the reasonable rate to rent a similar type vehicle. In other words, if you drive a Cadillac, you are entitled to the reasonable rental rate of a similar large sedan. If you drive a Kia, you are entitled to the rental rate for a sub-compact vehicle, etc. If you do not rent a vehicle, you are still entitled to loss of use. Many insurance companies will not tell you this; however, it is Florida law that the loss of use occurs when you are unable to use your vehicle whether you rent a vehicle or not. In order to determine the reasonable rental rate of your vehicle, you should call at least two recognized car rental companies and ask them what class your vehicle falls into and how much their daily rate is. This will be good evidence for you to negotiate your loss of use with your adjuster.
LOSS OF USE IF THE AT FAULT DRIVER DOES NOT HAVE PROPERTY DAMAGE INSURANCE
If the at fault driver does not have property damage insurance, you must look to your own insurance company for your property damage claim. If you do not have collision coverage, in this instance, you do not have a property damage claim, and you will be responsible for repairing your own vehicle. If you do have collision insurance, then you will be responsible for paying for your repair, as well as your own rental car. You are not entitled to loss of use from your own insurance company, unless you have purchased car rental reimbursement insurance. If you have purchased car rental reimbursement coverage, you are entitled to a rental car for the amount of days and at the rate contracted for. You will need to consult your policy for the terms of coverage. Again, if you did not purchase car rental reimbursement, you cannot recover for loss of use in this circumstance.
DIMINUTION OF VALUE
Under most circumstances, a vehicle that has been wrecked and repaired does not hold the same market value as a vehicle that has never been involved in an accident. This is common sense. Your insurance company will tell you, however, that when your vehicle is repaired it is "as good as new." In fact, some insurance companies will argue that your car is even better than it was before because it has "new parts" and "new paint." This is absurd. When did you ever go to a car dealer and have him tell you, "This car has been in a wreck, we repaired it, therefore, it costs more than this car is factory perfect." It is not logical, in fact, in most instances, you will not find a reputable car dealer who will knowingly sell you a wrecked and repaired vehicle. The simple reason is that a wrecked vehicle does not have the same market value as a non-wrecked value, nor is it as reliable as before or ever fixed "like new."
In order to determine the loss of market value or diminution of value for your wrecked and repaired vehicle, you must have an expert affidavit. The affidavit must specify that a qualified professional (i.e. car dealer or wholesaler) has inspected your vehicle and has determined that the market value of the car has diminished because of the accident, and he or she must specify an exact value. This person must sign the statement or affidavit and should have inspected the vehicle before doing so. Once you obtain this information, you may contact your property damage adjuster and begin negotiating your diminution of value claim. Please note that there are some instances when vehicles are either so old or in such poor condition before an accident that the collision will have little effect on the market value. This is why it is important to have an expert in the field make his or her assessment of your loss. You will lose credibility with your adjuster if you attempt to make this claim without the statement of affidavit of an expert so it is in your best interest not to attempt to do it unless a professional has formally assessed a loss of value to your vehicle.
A TOTAL LOSS
If your vehicle has been declared a "total loss" by your insurance company (i.e. the cost to repair the vehicle exceeds 80% of the car's market value), you are entitled to the market value of the vehicle. This does not mean that you are entitled to your loan payoff or your anticipated selling price. It means simply that you are entitled to the market value of your car. The market value of your car is determined by what the average retail price of your vehicle is in your community. In other words, what do car dealers or private individuals routinely sell the like make and model of your vehicle for and condition in your city. In order to determine the retail value of a car, I often confer with two websites that will tell you average retail values of vehicles. The first is Kelly Blue Book online or www.kbb.com. The second is Edmund's Car Ratings at www.edmunds.com. These simple to use sites will help you navigate to print out a retail value of your vehicle. Use this when discussing a payoff from the insurance company for your car. Do not use your loan payoff. Many people have financed taxes, extended warranties and previous debt from another vehicle. This does not affect the insurance company's evaluation of the market value of your car. In fact, if you have overpaid for a car or financed more than the value of the car, it is likely that once the insurance company makes their payoff, you will still owe your bank a significant sum of money. Unfortunately, there is nothing that your attorney can do to prevent this. You are just simply not entitled to anything greater than the market value of your car.
In order to offset some of these losses, you would consider factoring in loss of use for your totaled vehicle from the date of the accident until the date you receive a reasonable payoff offer.
I hope that you find this information useful in understanding and negotiating your property damage claim with your adjuster. Always remember not to discuss any bodily injury or treatment you have received with your property damage adjuster, and do not discuss liability (i.e. how the accident happened) with your property damage adjuster. The only discussion you should have with him or her is how much you are to receive for the three losses above that you may have experienced.
If your own insurance company offers you less than you feel is owed, please bring this to our attention. Often times, we are able to persuade your insurance company to treat you more fairly and increase their offer or “total out” your vehicle.
This consultation is free.
Michael B. Brehne
1 When the at fault driver has property damage insurance.