QuestionI hope you can share some words of wisdom on how to handle a property damage claim. Allow me to describe the accident. I'll refer to myself as Party C.
On October 1, 2005, I was involved in a 3 car accident. Party A (at fault per police report) made an unsafe lane change on the freeway which caused the vehicle in front of me, Party B, to rear end Party A and Party C rear ended Party B.
Party's A & B filed a claim against Party A. This claim is just now being resolved. Party C submitted a claim to receive compensation for the loss of the car ($3184.02) + car rental ($600.78) + towing ($278) = ($4062.90). Party B is claiming $16,544.56. The total property damage claim is $20.607.45.
The insurer states that Party A's property damage limit is $5000, which of course is not enough to compensate Party A & B. They've prorated the amount that can be payed to each party. Here's what they are offering:
Party C (me), $4062.90 = 20% of 20,607.45, 20% of $5,000 = $1000
Party B, $16,544.56 = 80% of $20,607.45, 80% of $5,000.
The insurer has sent a letter asking me to sign it so that the $1000 check can be released. Yet my loss was $4,062.90.
My question is, How can I go about collecting the balance? Can I refuse the check & ask for a higher amount?
I live in California (the sue happy state) and have heard of small claims court but am unsure how that works. Do i need a lawyer? What's the cost?
I would appreciate your counsel.
Answer
Intelligent money-wise buying auto insurance
UIM claim for property damage (PD)
At fault party PD policy limits
Managing Medical Care After Auto Accident
Delayed onset auto accident soft tissue injuries
Dear Carlos,
DO NOT CASH THAT CHECK. CONSIDER PROPERTY DAMAGE SOLUTIONS AND PERSONAL INJURIES FIRST.
You have five choices, depending upon how smart you were when you bought your own insurance. Understand that if you cash that check at any time, you have made your choice to be limited to that $1,000 inasmuch as the insurer will insist upon your signing a full release of their insured as a precondition of your negotiating their settlement check.
Once you sign the release, neither you nor your insurer can go after the tortfeasor. Plus, if you do sign a release, you will have eliminated your insurer's subrogation claim versus the tortfeasor, so that you may thus lose your rights to benefits under your own policy.
This is a case for intelligent money-wise buying auto insurance http://www.settlementcentral.com/page8008.htm
Thus, the first choice assumes that you were smart when you bought auto insurance, and you already have the perfect solution in hand. Simply make a claim under your Underinsured Motorist Insurance (UIM) for property damage. Your own UIM PD will cover everything, and you have no deductible to worry about. Your own company will take on the task of collecting from the tortfeasor.
The second choice assumes that for some reason you did not buy UIM PD coverage. Thus, you will have to rely upon your own collision insurance. They will pay for the losses you suffered, minus your deductible. You can work with them to try to get a hundred bucks or more from the $1,000 your insurer will collect from the tortfeasor.
Third, is an offshoot of the second choice. Work with your company to get your car repaired and pass by the $1,000 offer and sue the tortfeasor. You and your insurer will then obtain a judgement and you will execute it upon his assets or garnish his wages or bank account. They will get their money for repairs and you will get your deductible. This is a bit of a hassle, and the insurer is likely not going to want to do it, unless it can farm out the case to one of those law firms that does subrogation collection lawsuits.
Fourth (and this is my least desirable choice, since it means that you not only ignored UIM PD coverage, but you also do not have collision coverage), is to ignore the $1,000 offer and just sue him in small claims court. Find out your local limits, which should be around the amount of your loss. No attorneys are allowed. The form is simple. It costs less than $100. But you are limited by the amount of the court's monetary jurisdiction (usually $3,500 to $5,000).
Depending upon your answers below regarding personal injury, consider bringing the suit in a court with higher monetary limits. Once you add a personal injury, you will deal with the bodily injury limits of the tortfeasor, which have to be at least $15,000 in your state.
Fifth, is to return the check, pending one of the solutions above, and to see a doctor about the aches and pains you have suffered this first physically active season since the accident.
I am a little worried that anyone with THAT MUCH PROPERTY DAMAGE likely sustained some pretty good trauma, and soft tissue injuries have a way of creeping up on you seven months later when you start to get active in your first summer season since the accident.
After a weekend of physical activity, you may notice a dull ache that night or the next morning, or for the next three or four days. If you were able to do these spring and summer activities before without the same kind of pains, then that is a sign that you have residual soft tissue damage, and we need to account for that in making your settlement.
Many people want to ignore that little nagging pain that comes after a full day at work or after doing spring or summer yard work or other outdoor activities. They do not realize that often times soft tissue injuries do not manifest until weeks or even months 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.
You can certainly report that the pains were noticed some time ago and that you felt they would go away. But if you have been active in the past and had no pains or restrictions on your full physical involvement, then you need to know that any pains you are having this year are likely due to traumatic injury to your soft tissues in your neck or back. Make a note of what you can recall of dull aches and pains in the past months following physical activity and—assuming you have never suffered this kind of pain before—let the doctor know that these were present only after your car accident.
No problem if you have no aches or pains out of the ordinary for restarting activity after a winter of inactivity. BUT, if there is some nagging pain that shows at night or the next day following activities you did in summers past, DO NOT IGNORE IT AS IT MAY WELL BE DUE TO YOUR SOFT TISSUE INJURY.
Naturally, insurance adjusters do not like to hear this, or even think it might be true. But soft tissue does not heal as it was before inasmuch as scar tissue lacks the elasticity of the damaged tissue.
If you do have such out-of-the-ordinary pains following physical activity, then by all means CHECK IT OUT WITH YOUR DOCTOR BEFORE YOU RESPOND TO THE ADJUSTER. You can open your own PIP claim or health insurance claim to pay for your medical or chiropractic expenses.
If the pains are new post-accident, then 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
And, of course, once you settle, that is it: no one will be there to pay for your future medical or chiropractic care; nor will you ever see another dime in pain and suffering money. By the way, did you know that getting an early settlement is a favorite trick of the insurance adjusters? Please see my website wherein we show Insurance Claim Adjuster Secret Tactics http://www.settlementcentral.com/page0092.htm
Best Wishes,
Dr. Settlement, J.D. (Juris Doctor)
Http://www.SettlementCentral.Com
