QuestionQUESTION: Hi Anne, my car was used by someone without my permission or knowledge, and totalled it. I had left it parked at his house and walked to work, leaving my keys there so he could wash it while I worked. my insurance company guided me to file my totalled auto as a non-permissive use claim, which I did. No communication after that for 3 months. Then, three months later, they told me they could not settle my claim unless I filled a theft affidavit, which I had a hard time with doing, since my vehicle was not stolen, I know who used it without my permission. But, in order to cooperate, I filled out form to best of my ability - leaving a lot of n/a's (not applicable) throughout the form. I could not provide the required vehicle theft report from the night of incident, because my car was not stolen and therefore, not reported to police as such. It's February and it still is not settled, but the person charged with driving my car negligently was found guilty yesterday of the charge so I emailed insurance the court disposition. They emailed me back saying I reported it as stolen and need to get them the police report as one is required on my policy. I wrote back that my car was not stolen, so it was not reported stolen to police, so there is no report. The only reason I filled out the stolen form is because the insurance company told me they would not settle my claim without it. I stand by my non-permissive use claim, and would like it settled as that. My question is this. I reported it first as non-permissive use, then they told me to change it to stolen .... when a claim has gone this far, can it be changed back to the original claim of non-permissive use? Or is it set in stone that since they told me to change it from non-permissive to stolen six months into the claim, I am going to get screwed because I do not have a police report, because it was not reported stolen!
ANSWER: Hi Kim,
You are in a difficult position. Most auto insurance companies exclude all coverage for non permissive users (as long as there is no reasonable belief that the vehicle was used with permission). Depending in what state you are, the fact that you gave him the keys can be considered as implied consent. This is probably why then insurance company was pressing for you to reported stolen. If the car was reported stolen, then there was no permission to drive this vehicle.
Usually this is an issue for two reasons:
1. Your liability coverage will not apply if the vehicle was stolen (which means permission cannot be implied even if you say there was no permission). This means that the damages that he caused to others (other cars he hit or persons he injured) will not be covered under your policy.
2. Collision coverage could probably be excluded unless you have theft coverage (often under comprehensive coverage).
If you have both collision and comprehensive coverages, it is very possible that are ok and the insurance company should come forward and fix or total your car. Because if you gave permission (implied or not) then the car should be covered as it was in a collision and third parties are covered. If the car was not stolen, then the car would be cover under comprehensive coverage but no third party would be covered.
Also if the car is stolen, the person that "stole" the car has to pay the insurance company back for all the damages (if they can ever recovered), however if the car was not stolen, then the insurance company cannot subrogate (or go after him) because he probably meets the definition of an insured.
If the car was indeed stolen, you need to produce a police report as most insurance policies do require this. If the car was not, then you do not need to.
The best thing to do here is to talk to a lawyer and tell the insurance company exactly what happened.
Good Luck,
Anne
http://www.auto-insurance-claim-advice.com
---------- FOLLOW-UP ----------
QUESTION: Anne, thank you! I am in Massachusetts and have both comprehensive and collision coverage. I know that the third party has been paid already by my insurance company, as the lawyer in court the other day said they have been paid. I have told the insurance company every last detail and given testimony under oath to their lawyer. Should I call the attorney general? I do not have any money for a lawyer. I am 6,000 in hole from my rental car expense since July, and the value of my car was around 5,000. Do you know if in Mass. the "implied" consent by leaving my keys with him would cover me under my collision part of policy? If it is ruled a non-permissive use claim and my policy excludes that (which I do not know if it does or not), can the claim be switched and covered as a collision claim? Thank you, Kim
AnswerHi Kim,
You know, I am not sure about which rule Mass. Follows. I looked around and I was not able to get anything that was 100% concrete. It does look like that the keys give you implied consent, but I am not 100% sure on that (It's hard to keep track of 50 rules ;).
Well, sounds like your insurance company paid the other party (I am assuming the third party). If that is the case, I am incline to believe that your insurance company is "saying" this was a permissive user and therefore owed money to third parities. If they said that the vehicle was stolen, then they would have probably decline the claim.
If there is implied consent, then the claim should get covered under collision, as non excluded driver with permission (implied or otherwise) got in a car accident. If there was no permissive use, then comprehensive is you only option. It really pends on whether or not the insurance company determines if the car was stolen or not.
It would appear , if they are making payments to third parties then this means that the vehicle was not stolen and therefore there was permission. Once a decision is made you cannot go back and try to change the coverage you apply.
In either situation (the collision or the comprehensive) you must have rental coverage under your policy. Some policies automatically give you this coverage, but the great majority of them do not. Check with your agent to see if you have any rental coverage that can help you with your bills.
The attorney general can point you in the right direction, also contact the office of insurance and ask them what to do: visit http://www.mass.gov/ and go to the insurance division. Their website at the link above.
As always, you should always talk to an attorney before moving forward. Most attorneys will hear your case and give you advice, the first consultation usually is free. You have nothing to lose by calling around and see if someone locally can help you.
Good Luck,
Anne
http://www.spokanelegalhelp.com
