Auto Insurance Claims: Texas - Rental Car and Total Loss of Vehicle, subrogation and rental car

Question
Justin, I’m becoming versed on Texas Insurance Codes cites that rental car reimbursement is not due on a total loss of vehicle.    I’ll try to be brief with my concern.  My car wasn’t deemed totaled for several weeks after the accident and I had gotten a rental car in the meantime.  Both my insurance company and the other driver’s insurance company agree it was 100% the other driver’s fault.  My insurance filed in subrogation for reimbursement for their and my (like-kind) expense on the rental car and was denied.  I would like to appeal to the other insurance company in consideration that insurance is designed to’ make me whole’.  Is there any particular verbiage you would suggest for my letter on these lines or others?  I would appreciate your insights.

Answer
Joy,

  You have a tough battle.  The law is clear in Texas on this issue, but I'm sure there are some cases that have gone to court where some rental or loss of use was awarded on a total loss.  Your argument has to be pure logic.  If your vehicle was not deemed a total loss, then it was not a total loss and for the time that it was not a total loss, if it was not driveable, then you are owed for the lost use.  

  That argument might work if you scream and yell long enough about it, and if you filed a suit, you would likely get something just because the company probably won't have time to deal with you and it would be worth $500.00 to make you go away.

  Bottom line, the law is on their side.  They don't owe for loss of use when the vehicle is totaled.  Joy, also make sure you understand the difference between first party and third party claims.  The other company does not have a duty to make you whole.  They have a duty to pay you for damages caused by their insured.  If you file on your insurance, you are using a contract.  If you file against another party's insurance, then you are using tort law.

JP