QuestionI was in a head-on collision in a parking lot. My car is
totalled. This particular parking lot has no lanes, or
marked right-of-ways at all. Everyone entering and exiting
must drive across many parking spots to get to their
destination. (It's kind of like the wild west of parking
lots)
Is this negligence on the property owners part, and do I
have any case if I decide to sue?
AnswerDear Carol,
There are three issues here. First is liability—who is at fault: you, the other driver, or the property owner/operator—OR A COMBINATION OF ALL THREE?
The second issue is how to deal with your totaled car. The third issue is what to do in the event you may have been injured by the heavy trauma you suffered.
1. LIABILITY
First, in most all states, there can be more than one party at fault, and fault is apportioned. For example, it would be unlikely that one or both of the drivers could escape some liability. The fact that a vehicle was totaled makes one wonder about speed, and if one driver were speeding and the other not, then that could help in focusing liability.
The extent to which you are liable would reduce your award proportionally, irrespective of whether you are going after the other driver or the property owner/operator, or both.
Is there any chance for liability against the property owner or operator? Yes, if one can show that the condition was dangerous. A history of accidents on the property would help to show that there was a need to strip the lot. If there is no proof of prior accidents, you would have a hard time showing any liability. So it will be up to the extent to which you can show prior problems inasmuch as an unstriped parking lot is not in and of itself dangerous.
2. TOTALED CAR
Irrespective of whether or not it is your insurance or the other driver’s insurance that is taking car of your car, there are a couple of things that you can do with a so-called totaled car.
• First, consider lowering the repair cost by repairing with USED and/or NON-Original Manufactures' Equipment (OEM) PARTS and stipulating to ignore some cosmetic damage; that will allow the insurance company to do the repairs within the percentage of allowance of actual cash value that it has already specified; OR
• Second, buy back the car from the insurance company as salvage, repair it, re-title it, re-license it, and KEEP YOUR CAR; OR
• Third, fight the actual cash valuation with your own research and communicate in writing.
My favorite sites for valuation are www.Edmunds.com and www.autotrader.com. They want to know your zip code, and then they ask for a range in miles to search. Don't limit yourself to your city: it is reasonable that someone could go up to 300 miles to pick up a used car. That way you will get a lot more information. Be aware that you should pick the option "any distance" from your zip code. You can use information from local papers, advertising flyers, car dealerships, and the Internet.
Be aware that the prices shown are the "asking" price, not the actual cash value. But also be aware that the insurance adjusters have used a computer scan of sales that were at the trade-in value, NOT the actual cash value.
If you have made major item replacements, above and beyond normal maintenance, you need to document them and ask for a review of those extras. For example, a rebuilt transmission or the like will add value to a used car. How about new tires or a new stereo system? The issue is: how much (if any) did they increase the FMV or actual cash value of the car. See this link and scroll to the bottom for more information on that topic. Car Accidents: Totaled, Repair, Valuation, Your Rights http://www.settlementcentral.com/page0007.htm
3. PERSONAL INJURY
If you suffered any personal injuries in a crash that was hard enough to total your car, then you need to check into compensation. Even if you were partially at fault, you still can make a personal injury claim.
Let’s say you were 40% at fault, then with a $20,000 claim against the main tortfeasor, your award would be reduced $8,000, which is 40%, down to $12,000.
Another topic is the probability that you sustained some soft tissue injuries. With that kind of property damage it is likely that there was more than sufficient trauma to cause soft tissue injuries.
Many people want to ignore that little nagging pain that comes after a full day at work or after doing spring yard work or other outdoor activities. They do not realize that often times soft tissue injuries do not manifest until weeks later.
There may be a dull ache at night following some physical activity or pain the next morning. DO NOT LET LITTLE PAINS GO UNATTENDED SINCE YOU DO NOT KNOW WHETHER THEY WILL CONTINUE OR GO AWAY. We all hope and believe that such little pains will disappear soon. But on the other hand, we have no way of knowing since this is the way serious soft tissue injuries can behave. SEE A DOCTOR AND ATTRIBUTE THE PAIN TO THE ACCIDENT WITHOUT EQUIVOCATION. It is NEVER TOO LATE TO REPORT PERSONAL INJURIES FROM A CAR ACCIDENT http://www.settlementcentral.com/page0104.htm
Managing Medical Care After Auto Accident: http://www.settlementcentral.com/page0203.htm
"No medicine: no money"; medical costs increase value of personal injury claims http://www.settlementcentral.com/page0045.htm
#4. FINAL TOPIC: Effective communication with insurance claims adjusters. Establish Firm, Professional, and Positive Relationships With the Insurance Injury Claims Adjuster http://www.settlementcentral.com/page0059.htm
Always communicate with the adjuster in writing, showing your own analysis of value. It is OK I guess to have one call or so, but no more. Always have your information and ammunition in writing to give to the adjuster.
Let him know that you are FIRM IN YOUR RESOLVE to get what you are demanding (NOT "asking", since that invites a counter-offer, but instead "demanding" as fair and reasonable compensation) by asking him what the options are to resolve the matter fairly should he not agree to a reasonable claim value. In other words, let him know that you will go through with a court filing if need be.
Remember these tips, do your homework, print out your evidence, show resolve to get your fair settlement, and you will DO JUST FINE.
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
