QuestionWe live in California.
Yes she has uninsured motorist coverage but they are saying that it only covers uninsured and not UNDERINSURED. She did not have collision coverage.
This makes no sense to me. If this is the way it works, we should all go out and buy minimal insurance. Then when insurance pays the limit, you're off the hook.
The body shop cut huge holes in the sides and that's where it now is. The salvage yard said they would have paid considerably more had they not done that. The insurance company can't take the salvage because they are not paying the full value of the car.
Thanks for your help.
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Followup To
Question -
My daughter was rear ended by an unlicensed driver who was driving someone else's vehicle that carried very low amount of property damage insurance. My daughter's car was declared totaled, but they didn't carry enough insurance to cover her loss. We are now being told that if she accepts the check they are offering, it leaves the other guy off the hook and she can't sue them for the difference. We were hoping to file small claims action to recover the difference. She is stuck with the salvage, but the salvage yard says the value has been greatly dimenished by the body shop chosen by the other insurance company (the cost of the estimate also comes of our property damage settlement).
Also, since we assume the driver will face charges for unlicensed driving, can the court sentence him to make restitution? I can't get the police dept. who made the report call us back.
Answer -
Very interesting.
I have some questions.
What state do you live in?
Do you have Uninsured Motorist Protection?
Why is she holding the salvage?
You state that "the salvage yard says the value has been greatly diminished by the body shop". Is that because of tear down?
Sit tight and don't cash that check or sign anything, ok?
AnswerOk. You most likely have under-insured motorist protection but it only kicks in if your coverage limits are higher than the limits of the other party. So if you had 50k, it would apply but if you're carrying the same minimum limits of 25k, it will not.
Legally, I don't know how they can force you to sign a release to receive the policy limits. There is no dispute of liability so if you were to sue, you'd likely prevail with a summary judgment and then they will have to pay yours and their own attorney fees. I'm pretty sure that this is a feeble attempt on their part to protect their insured, but I'm not sure why they are bothering as they owe him no more than the limits.
Though I know time is of the essence, you may try a certified letter to the insurer outlining what I've said. If you do not receive the check within 10 business days (also put this in your demand letter), then it's time to get an attorney involved as the California small claims court max is only $5,000.
One thing that you'll want to evaluate before proceeding with legal action is your collection potential. If the other person has no assets, all you'll really be doing walking around with a worthless judgment that must be continuously renewed until they either give up and pay or vanish. As far as the traffic court forcing him to make restitution, this is out of my area of knowledge. I would recommend contacting the appropriate court to see if they can answer that question.
Lastly, you can explore some repair options with other body shops. It's possible that there are many repairable components on the vehicle that were written to replace. The reasons for this range from lack of technical skill (repair takes much more skill) to the shop cherry picking for a more profitable job to the insurance company totaling the car to get it out of their hair. I'd take detailed pics and the estimate to some other shops and see what they have to say. If there is a viable chance of repairing the car, you may be able to get the insurer to reverse the total loss decision. Honestly, it's very difficult to do more than $25,000 worth of damage to most cars. By the way, what kind of car is this?
I'm very surprised to see a vehicle with that much value not having higher UM limits and no collision. For the future, you'll want to get that corrected as well. Personally, I carry many times the UM limit as the state minimum liability. Not only does it cover the vehicle, but also medical bills, pain and suffering and God forbid, loss of life settlements as well. Recently I had to handle a fatality claim involving a young mother where the family had only been in this country for a short time. They had no idea about insurance and as she was not the bread winner, had no life insurance on her. She was hit and killed by a drunk driver. Of course, the husband also failed to realize that we would pay this to him automatically so he got an attorney to handle it. The piece of crap that killed his wife was an illegal immigrant so there is absolutely no future collection potential there. But, because he agreed to pay an attorney, he's also going to end up with only about 2/3 of the $25,000 to raise two small children on for the next 15 years. I think that attorney should be shot.
Anyway, please keep me posted ok?
