QuestionQUESTION: Last Saturday my wife and I were hit by another driver. Our vehicle was 1999 Chevy Malibu, and it is currently 'unofficially' a total loss; the rear d.s. wheel and coil spring were broken off on impact (note: the other driver's insurance company has not sent a representative out to assess damage and officially deem it a total.). The county sherriff's motorist report stated that she had no valid driver's license; however, the vehicle was insured. The motorist report did not have a contact # for the lady's insurance company. We called a tow truck,and the vehicle has been stored at their lot since Saturday, where charges have been incurred.
The lady at fault did not file a claim through her insurance agency; we did. Upon contact of her insurance company--on Tuesday, due to weekend and MLK day, we were told that their company will not be responsible for paying lot fees, and it is our duty to 'mitigate loss'. What does this phrase mean? Our personal agent has told us that for insurance companies to employ this term is not unusual. However, we consider our situation unique for the following reasons:
1) The motorist report did not note a phone # for the company. We did an exhaustive search for the company's contact information for 2 days, and did not find anything. We actually had our insurance agent call headquarters, and they gave us a series of numbers to 'try'. Are we responsible to mitigate loss, even though the lady at fault did not begin a claim or provide detailed information on her provider?
2) We filed our claim on Tuesday, and were given a claim #. We have record that, from Tuesday, it would be "3-5 business days" until someone came out to assess damage. On Thursday, an adjuster contacted us, and said that the "3-5 business days" actually began on Thursday--when she got the memo--not on Tuesday. Apparently the message wasn't given to her from within, until 2 days afterwards. If we are responsible to 'mitigate loss' from Saturday-Tuesday, are we responsible for the Tuesday-Thursday storage fees, where a lack of communication occurred?
The motorist report illustrates that we were the ones hit, and we are not at fault. The police report states that the lady at fault received 2 citations and is awaiting a court date. My question, then: What is 'loss mitigation' and do its terms apply to this unique situation? Thank you, Michael
ANSWER: Hello Michael,
One sign of a newbie or someone who wants to keep you in the dark in any profession is one who uses industry jargon on people not in the profession. Thats the kind of adjuster you have here.
To "mitigate your loss" means you should do what a reasonable and responsible person would do to keep more damage from growing out of a loss. For example, if you had broken windows in your car and you knew it was going to rain and you did not tape some plastic over the openings, or store the car under a cover, you would not be "mitigating your loss".
Adjusters love to say "its your duty" to protect your property from further damage. But guess what? Its their duty to pay your costs in doing that, whether it's a claim against your own insurance or someone elses insurance.
When you make a claim against someone elses insurance, keep in mind that they only owe you for what their policy holder is "legally liable" for. Thats shy its called "liability" coverage. And one is not legally liable until there is a court judgment against that person. So technically, the other drivers insurance would not have to pay you until after you sue the driver and get a judgment. In practice, most insurers won't put you or their policy holder through that. They risk being sued by their own policy holder.
As to the storage charges, they owe you from the minute the tow truck picked up your car. That adjuster is full of baloney. If the adjuster wants to play hard ball, take whatever they give you. Don't sign any releases (and line out any release on the check), then sue the driver for the difference. If the driver does not want to pay you, then he/she will give the court judgment to their insurer to pay.
If your claim is for over the small claims limit, try to find a lawyer to take your case for a percentage of the amount he gets you over and above what you got on your own. 50% is fair. You probably won't find a lawyer to take your case if you don't have an injury to go with your claim. If they underpay the value of your total loss vehicle, then I recommend a guide for consumers entitled "TOTAL LOSS AUTOMOBILE INSURANCE CLAIMS ADVICE AND HELP - FOR CLAIMANTS Subtitle: HOW TO NEGOTIATE WITH THE OTHER DRIVER’S INSURER" for 24.95 at http://www.uclaim.com/products.asp . This guide will even help you with litigation if it goes that far.
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QUESTION: Mr. Cercone, we're appreciative of your response. Let me respond with another question in regards to a potential case. We've been told from others as well that a lawyer may not take our case. We were not injured, and the KBB value on a 10-year-old car with 170k miles is probably 2k tops. However, we have been told by our insurance agent (simply 'advice' given by him) that we might be able to defend ourselves in this matter. Is this recommended? We do have a free consultation with a local firm on Monday, and he said that we should let them provide advice on this.
We know full well that their insurance company (American Access) will have a lawyer; are we setting ourselves up to fail? Thanks once again for your response.
AnswerThanks for the nice Rating Michael,
The only thing you have to fear is fear itself, right? Isn't that what Churchill said? You can beat these guys, but you need knowledge, and knowledge is power. It may only take one good idea to beat them, it may be a knock down drag out fight. But you won't know if you don't try.
1. I doubt that American Access will hire a lawyer to fight a $2,000.00 vehicle valuation. More likely they will hire an independent appraiser or adjuster, if they don't just have their in house adjuster fight it.
2. If you go into small claims court, most states don't allow lawyers to officially argue the case. So you will be arguing against an adjuster in front of a judge. However I once went against an adjuster in small claims court, and the adjuster had a lawyer in the galley (the viewing area) yelling instructions at him. It was like a circus, but apparently not illegal, since the judge did not shut him up.
3. Don't get sucked into arbitration or an "appraisal process". Most insurance companies will only hire a prostitute appraiser and never agree to your 3rd party umpire (to break the disagreements). You are much better of with a judge in your local small claims court (who also comes up for re-election by the people).
You will get 11 pages of very detailed information on how to pursue your claim with respect to the report I previously suggested at www.UClaim.com. You follow the guidelines in that report, and you will be fully prepared if it does end up in small claims court.
In addition, if American Access used CCC or ADP to put a value on your car (10-15 page computer reports), then you can also get a specific guide at UClaim for $19.95 that will show you how to easily discredit a CCC or ADP report. (One of these Uclaim "Appraisal Dissected" reports should only be purchased as a supplement to the underlying report previously mentioned.
