QuestionSo where's my money? I have been waiting way too long for a settlement, about 10 months to be exact and still waiting for the check to come in the mail. So, in September of 2008, my car was hit and totaled while it was parked beside a curb. Two other cars were involved with one being the car at fault. I have liability and so does the other car. The claims adjuster said that we have to split the money. Well, that's fine but how long am I supposed to wait for the check to come? I am so frustrated. I gave up on calling the adjuster because all he would ever say is that the insurance agent of the other not at fault driver has not given the subrogation demand... and it has been 10 months. And even when I call the insurance agent she would say that there was something she needs from the adjuster. I honestly don't buy what they say...I don't know who is lying and who is telling the truth. I don't know what to do...should I wait longer? Should I pretend to sue the at fault driver so that he may haggle the adjuster into giving my money? Will I ever see any money? Please help me. Thanks.
AnswerHi Charles,
It sounds like you are very frustrated, and apparently for good reason. That frustration shows in your writing because it is not clear what is happening. Hence, I am left to guess at your situation.
I am going to give you a lot of time in making an answer that should be useful to you. First off, I want you to insist upon getting interest for those 10 months if you have to go to small claims court. I will show you how to compute prejudgment interest below. Also, I would contend that you are owed RENTAL CAR ALLOWANCE FOR EACH DAY since they agreed to the settlement amount. I will address this below as well.
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Now, in addressing your question, I do need some help in understanding what exactly does this mean in the context of someone hitting your car:
"I have liability and so does the other car"
Liability ONLY comes into play where YOU caused the accident. Unless you were parked illegally and blocking the roadway, your having liability insurance is not relevant.
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If you meant to say that you have COLLISION insurance, then that is something useful and should be used IMMEDIATELY. Why did you not use it once you saw the delay? Probably because most people assume that if they call on their own insurance they will get tagged with an increase in premiums.
No need to worry about that since this is NOT AN AT-FAULT ACCIDENT, and hence, your own insurance cannot tag you with a rate increase. Hence, make the claim ASAP and get your payment in full and move onward. Let your insurance get its subrogation claim paid by the other companies. http://www.settlementcentral.com/page0459.htm Speak with your adjuster about getting your deductible back from the money they will collect using your rights in subrogation. Often one's own insurer will collect the deductible and pay it to their policyholder.
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Next is another confusing statement from you:
"The claims adjuster said that we have to split the money. Well, that's fine"
Does this mean you are being asked to take less than your total owed because you are going to split the tortfeasor's policy limits for property damage? I am hoping that you are NOT splitting the money with some other damaged party. If you are, then THAT IS NOT NOW OR EVER "FINE". You have the right to be made whole and either you get that from them or your own insurance or suing the tortfeasor in small claims court—or a combination of all three.
I am hoping that what you meant to say is that the PAYMENT to you will be allocated between two tortfeasors and the adjuster has to make those arrangements.
While that is an understandable situation if two drivers were at fault, it IS NOT EVER A REASON FOR A TEN MONTH DELAY. This is not done in good faith, and it warrants a complaint to the state insurance commissioner http://www.settlementcentral.com/links.php
Look, their excuses are just excuses: they have a DUTY TO MAKE PROMPT PAYMENT. You should NEVER become involved in their problems: let them pay ASAP or they will suffer the obligation of paying you interest and the embarrassment of responding to a complaint from the state insurance commissioner.
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If you do have COLLISION insurance, then I would immediately make the claim on my own collision, and get the deductible from the tortfeasor or have your own company collect it for you.
IF YOU HAVE NO COLLISION INSURANCE, then you will have to do all three of the following:
(1) File a complaint with the state insurance commissioner
(2) Determine the pre-judgment rate of interest in your state—maybe from an attorney or from your state legislative delegation. This is the rate of interest that the courts apply to a debt that is of an agreed amount and remains unpaid until trial. In my state, the rate is 12%.
(3) File a complaint in small claims court ASAP. You asked: "Should I pretend to sue the at fault driver"?
NO—you should not "PRETEND" to sue him—you simply go and sue him ASAP.
Small claims court is a simple proceeding. You have the proof that is needed. You need to print out the correspondence or e-mails that show that his insurance has agreed to pay the value of your totaled vehicle.
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COMPUTE PREJUDGMENT INTEREST OWING TO YOU RIGHT NOW
Take that amount owing and compute interest on it and add that to the claim versus the tortfeasor. For example, if the agreed amount were $15,000 for the actual cash value of your vehicle, plus licensing fees, then you use that to compute interest for the months it remained unpaid.
See computations below for these two examples. If your state prejudgment interest rate is 12%, then they owe you an ADDITIONAL $1,500; If your state prejudgment interest rate is 9%, then they owe you an ADDITIONAL $1,125.
The "amount owing" has to be either agreed upon or subject to calculation. In this case, let's give two examples.
First, maybe they agreed upon $15,000. Then you use that to compute your interest.
Second, maybe you were still battling as to the value of your vehicle. You demanded $16,000 and they offered only $15,000. In that case, I would tell the judge that by their own admission, they owed AT LEAST $15,000 and hence, that is the amount you can use to compute interest.
In this case we have made up, 12% prejudgment interest equates to 1% per month, or $150 per month, or $1,500 ADDITIONAL OWING TO YOU as interest.
If you want some help to compute interest in case your state rate is something else, here it is. Pretend your state prejudgment interest rate is only 9%. You take the amount owing ($15,000) times 9%, which equals $1,350. Then you divide that by 12 months, which gives a monthly amount due you of $112.50, and then you multiply that by the number of months that they have owed you (10 in your case), and the amount of interest owed to you is $1,125.00.
RENTAL CAR ALLOWANCE OWING YOU. http://www.settlementcentral.com/page0458.htm
http://www.settlementcentral.com/page0456.htm
Usually the victim is allowed a rental car allowance from the date of the accident until the date that the insurer makes a fair market value offer, or something close to it. In this case, I would make the claim for a rental car allowance from that date until present.
Probably you will not get a rental car allowance; but I would surely throw it in to the lawsuit claim in small claims court. Do NOT be bashful about adding these things to your claim.
OK, Charles, I think that you have some good instructions on how to proceed with vigor to get all that is owed to you. I trust that my extra time here has produced some information that has been of value to you, and thus I would respectfully request that you take the time to locate the FEEDBACK FORM on this site and leave some feedback for me.
Best Wishes,
Dr. Settlement, J.D. (Juris Doctor)
http://www.SettlementCentral.Com
