QuestionQUESTION: Hello - I was involved in a recent accident where my insurance company found me not at fault. The other driver's insurance company is only offering to cover 80% of the damages to my vehicle. Unfortunately, I did not carry collision on my vehicle at the time, and so my insurance carrier will not subrogate my claim. As I think getting a lawyer involved will most likely cost more than the 20% I am being asked to pay (~$500) I am concerned because the letter I received from the other insurance company specifically lists the amount they are willing to pay based on my body shop estimate. So I'm afraid to sign a property damage release that lists an exact amount if the estimate was only based off a visual inspection. My fear is that once the repairs are started, there may be additional damage that I would then be liable for as I have signed a release for an exact amount payable to me.
Without a lawyer or my insurance company backing me, I find it hard to believe I can have any influence on the other driver's insurance company. Any advice on how I can prevent paying more than the 20% if additional damages are found during the repair?
Thanks for this service!
-Nick
ANSWER: Hi Nick,
A lot depends on how willing you are to accept 20% fault in this accident.
You should get at least two more estimates to be sure that the first one is correct and then go back and talk to the body shop that wrote your estimate and ask them the likelihood of finding hidden damage after tear down. If they feel there is a strong chance of finding more damage, you should be able to convince the adverse insurance company to make their 80% payment based on a revised estimate after tear down.
It is not unusual for the adverse company to take advantage of the fact that you have no representation from your own company and reduce their offer.
You state that your insurance company found you not at fault. How strong is the documentation supporting that decision? Was there a police report? Any witnesses?
If there is strong evidence showing the other party to be 100% at fault, you may decide to file small claims court action against the driver for the full amount of the average of the 3 estimates. If you win in small claims court, his insurance company must pay the full amount of the award.
The big stumbling block here is that of the 50 states and DC, only
eight do not allow an attorney in small claims court. Thirty seven allow an attorney at all times and six allow an attorney under specific conditions. If an attorney is allowed in your state, the adverse insurance company will provide a free attorney to their insured to represent him in court and you would be at a disadvantage presenting your own case against an attorney.
If you will write a follow up and tell me in which state this accident occurred, I will respond with the small claims court laws and limits for that state.
I hope you have found this information to be helpful.
Your feedback by rating my answer will be appreciated.
Sincerely,
Bennie
San Francisco Bay Area
---------- FOLLOW-UP ----------
QUESTION: Thanks Bennie, very helpful information. I will plan on getting another estimate or so and then go back to the insurance company with that information. I'll also go back to the original estimator for a more detailed explanation of what they think the hidden damage may be.
As for small claims court, get ready for a complex tale of jurisdiction. I am registered and live in Oregon, however the accident occured in Nebraska while I was transporting a vehicle I purchased in Kentucky (and luckily insured starting the day before) with another driver from Minnesota. So I am unsure of how or where a court case would even take place.
As for the accident, it was on a highway where the other driver pulled out from a no parking area and failed to yield right of way. The police issued a citation to the other driver. The negligence on my behalf that the other insurance company is maintaining is that I said in my statement that I didn't see the car until it was 10-15 ft in front of me. It happened that I looked to read a road sign and when I looked back the car was too close to avoid. I managed to swerve to miss a direct rear impact, but still ended up hitting the car.
The unfortunate coincidence is that I turned to look (as there was no one in front of me at the time) and since the other driver was moving much slower as they tried to merge, it only took about 2 seconds or so to catch up to them even when I calculated the vehicle to be close to 70yrds in front of me when I turned to read the sign. But they are saying I am 20% negligent for not maintaining proper lookout.
So, I'm not sure if it's worth chasing in court or not given the lookout and the multitude of states involved, but any advice would be great.
Thanks again,
Nick
AnswerHi Nick,
The issue is not worth pursuing in small claims court. Action would have to be filed in Nebraska Small Claims Court (rules and laws listed below).
It does sound that the adverse company can put a % of fault against you for inattention.
I think pursuing the action you describe above is your best bet.
NEBRASKA SMALL CLAIMS:
Statues: Revised Statutes of Nebraska, Ch. 25, Article 28, Sections 01-07; Ch. 25, Article 27, Section F 28-38 (appeals).
Dollar Limit:: $2400 (Adjusted every 5 years based on Consumer Price Index) Where To Sue: Where defendant or agent resides or does business or where breach or injury occurred. Corporation resides where it does business or has agent.
Service: Certified mail or sheriff sent according to court instructions.
Hearing Date: Set by court.
Attorneys: Not allowed.
Transfer: Defendant may request transfer of case from small claims court to County Court docket. Must request transfer at least 2 days before the hearing time and must pay the difference in fees between the small claims court and the regular docket of County Court. By law, plaintiff cannot object to transfer. After transfer, both the defendant and plaintiff may have an attorney. Jury trial must be requested when transfer is requested.
Appeals: By either side for new trial; to District Court within 30 days. Attorneys are allowed, but jury trial is not permitted.
Special Provisions: Equitable relief available. Right to sue may not be transferred. Limit of 2 claims a week up to10 claims a year per plaintiff.
Note: This section outlines the special rules that apply to the small claims courts of all 50 states and the District of Columbia. Filing fees are not listed because they vary greatly and change frequently. This information was last updated in 2004. Because court rules may change at any time, always check with the clerk of the small claims court to verify the accuracy of the information given for your state.
Good Luck,
Bennie
