Question
parked cars
Hello Charlie,
I had stumbled across your email from researching online about DV claims and thought you could help me out. I live in Dallas, TX and I had bought a brand new 2009 Toyota Rav4 mid-October of last year (approx. $25,000). THREE WEEKS after driving it off the lot and parking at a friend's apartment complex in the visitor's parking space, near the entry gate, someone driving a 2005 Ford Pickup 4x2 Truck ran into my vehicle on the rear passenger side and pinned the rear driver side up against the parked truck next to me. The accident happened on November 3, 2008 around 1am. She was busy text messaging while driving and wasn't paying attention. She admitted fault to me and I had my 2 friends out there with me so they can hear everything. There was no police report ever taken of the incident. The car was taken to a body shop, in which it stayed there until the end of the year. My car had only 1,860 miles on it when it was in the shop. It cost the at-fault insurance $6,770.43 for repairs, plus car rental. After it was out, I took my car to CarMax to get an appraisal and they appraised it at $14,000 because they considered any welding onto the body as structural damage!
I had told the insurance adjuster from the driver at-fault's insurance that I will definitely be claiming DV on this, they asked how much I was asking, so I scanned & emailed them a copy of my receipt on how much I paid and a copy of CarMax's appraisal. They said they would offer $1,800 which is a slap in the face! Later, after not accepting their offer, they said they miscalculated and offered $2,500 and cannot go any higher. I didn't want to accept that either, so I found www.autoloss.com and paid them $399 to hopefully help with the matter, and so far I'm doing whatever they said to rebuttal against the insurance adjuster, even spoke with her supervisor and the supervisor finally had their own appraiser come out to take a look at it. I had demanded them to get an outside appraiser out of good faith and they won't do it. The insurance adjuster told me that $2,500 was the number her supervisor gave her. But when I talked to the supervisor, he said he never came up with that number, so I'm asking WHO DID? This was all prior to their appraiser coming out to take a look at my vehicle during my work day.
So, after their own appraisal was done, they're STILL offering $2,500 and I asked him to provide documentation as to how they are still at $2,500 and they said they wouldn't. They said I really didn't have any FRAME damage, but to me a unibody is still basically the structure of the vehicle and has crumple zones that are weakened after the first accident and not to factory standard. They compared my vehicle to a Toyota Camry instead of a Rav4 like AutoLoss.com did for me (fair market value is $21,865 for Rav4). The supervisor's tells me the Camry is more expensive in his defense when I asked him why he was comparing "apples to oranges". Then he told me that I have up to 10 days to accept the $2,500 or the amount will rescind AFTER 10 days over the phone.
I sent the insurance adjuster a demand letter after wards and basically she sent me a formal letter stating the same thing, dated December 7, 2009. So now I am in this current state in which I talked to the people from AutoLoss.com and they said I should tell them that I will be taking the insured out to sue at a Small Claims Court, which would probably scare them into settling quicker.
My questions to you Charlie are:
1. Does the insurance have the right to tell me I have 10 days to accept the current offer, especially after the fact that it's taken them OVER 1 YEAR to get to this point? And if so, would this matter be better off in a Small Claims Court in which I would probably have to miss work for?
2. If I do decide to sue the insured or the driver at fault, does the driver at-fault's insurance have an obligation to pay for her legal defense fees and/or DV if I do win in court?
3. Are weekends considered in this 10 day ultimatum from them, or just weekdays/business days?
4. I've been providing them documents all this time, they have provided me NO documentations as to how they draw their offer. Is this legal? Can they not provide me anything in official writing and expect me to accept their offer from their so-called "calculations"?
5. Does Small Claims Court in Texas allow for DV Claims such as mine and would they allow me to use an attorney?
6. The 3rd vehicle that was involved in this, the other parked vehicle in which my car was pinned up against...is the at-fault insurance obligated to have a claim with them also?
7. In your opinion, do you think I have a good fighting chance to get somewhere between $4,000-$5,000 in my DV claim?
8. Or, do you think, to avoid all the hassle and headaches, that I'm better off accepting their $2,500 offer?
I'm sorry to have written a book for you, but as a consumer who's worked so hard to save up money to pay off his first brand new car, I can tell you, it's very disappointing to be treated unfairly. Your expedited help would be greatly appreciated in all of this as I do not know who else to turn to for the moment.
Thank you,
Binh
AnswerBinh,
Let me start by telling you that the liability carrier of the at-fault party has no legal duty to you. Their policyholder, on the other hand, does. That is where you need to apply pressure. And yes, her insurance company has to pay for a lawyer to defend her, which will add to their costs of settling the claim. DV claims are typically not in the realm of regulations with respect to the rules in various states, so they will do whatever they can get away with. You are in uncharted waters, so to speak.
If you were my customer I'd tell you to file in small claims court, as threats don't seem to be working for you. As for what you get, the only definitive measure of a diminished value loss is to sell your car to the highest bidder, then take the difference between the net proceeds of the sale and the pre-loss book value and then you have a hard figure. Of course, this move may not be practical as your vehicle is probably financed. You can still sell it on EBay subject to the loan payoff to establish the value. Also, you have to bear in mind that while all this has happened, your vehicle is losing value as it ages and accumulates mileage, which is not something the other party owes you for.
If you win, the liability carrier may pay you or may appeal the decision---it all depends on how strong your case is and the whim of the insurance company involved.
The 3rd vehicle involved can file a claim with the party that caused it all or with your company, who will subrogate the loss with the first party.
