Learn what your rights are
in the settlement of a total-loss claim.
To get a fair valuation
of your total-loss vehicle,
you have to exercise your rights.
To exercise your rights,
you need to know what
your rights are.
Let’s get acquainted
with some of the rights
that you have in the settlement
of your total-loss claim.
To ease you into this patch of learning,
let’s begin with the basics.
knowYourRightsChapter
You are either
a first party or
a third party
to a written
automobile-insurance-policy contract.
If you are dealing with
your own automobile insurance company,
then your total-loss claim
is called a first-party claim.
If you are dealing with
the automobile insurance company
of an at-fault driver whose negligent act
caused the destruction of your vehicle,
then your total-loss claim
is called a third-party claim.
Why this terminology?
First party to what?
Third party to what?
To somebody’s automobile insurance policy.
An automobile insurance policy
is a written contract.
There are three parties to that contract:
-
The policyholder
is referred to as the first party. -
The automobile insurance company
is referred to as the second party. -
If, through negligence,
a policy holder destroys
the vehicle of another driver,
that other driver (who may be you)
is referred to as the third party.
Hence, if your claim is a first-party claim,
then you
and the automobile insurance company
are principals to a contract.
If your claim is a third-party claim,
then you are what, in law,
is called a third-party beneficiary
of a contract.
More specifically,
you are a third-party beneficiary
of the first party’s liability coverage
in his or her automobile insurance policy.
(State laws and court decisions
sometimes refer to the liability coverage
in somebody’s
automobile insurance policy
as “the insured’s liability contract.”)
The policyholder’s
liability coverage
doesn’t name you by name;
but it anticipates that you—
out there somewhere—
exist.
Furthermore,
the policyholder’s liability coverage
anticipates
that the policyholder
just might engage in a negligent act
that causes
the destruction of your vehicle.
If your claim is a third-party claim,
then, apparently,
what the first party and the second party
jointly foresaw as a possibility—
and insured against—
has come to pass.
“Yeah?”
“So what?” you might peevishly ask.
Here’s what.
You_are_either_a_first_party_or_a_third_party_to_an_automobile_insurance_policyChapter
You have dramatically different rights
depending on whether
your total-loss claim
is a first-party claim
or a third-party claim.
Why are your rights different?
How are your rights different?
One area of law
governs the settlement
of first-party claims.
A different area of law
governs the settlement
of third-party claims.
Your relationship
with the automobile insurance company
that you’re dealing with
is different under a first-party claim
from your relationship
under a third-party claim.
In the settlement of a first-party claim,
your automobile insurance policy
may take away from you
many of your rights—
rights that,
in the settlement of a third-party claim,
the automobile insurance company
that you are dealing with
cannot take away from you.
Hence, which rights you have
depends largely
on whether your claim
is a first‑party claim
or a third‑party claim.
Which rights you have
can produce dramatic differences
in how the automobile insurance company
that you’re dealing with
is required to settle your claim.
Here are some of those differences:
First-party claim
Third-party claim
In the settlement of a first-party claim,
if you dispute
your automobile insurance company’s valuation
of your total-loss vehicle,
your automobile insurance company
may be able to require you
to submit the valuation
to an expensive appraisal process.
That requirement is designed
to discourage you
from challenging
the automobile insurance company’s valuation.
If your claim is a third-party claim,
the automobile insurance company
that you’re dealing with
cannot require you
to submit the valuation
to an expensive appraisal process.
Instead, if need be, you can challenge
the automobile insurance company’s valuation
at a very low cost
in a small-claims lawsuit
or, if need be, challenge it
in a large-claims lawsuit.
In the settlement of a first-party claim,
if you dispute
your automobile insurance company’s
settlement of your claim,
your automobile insurance company
may be able to require you
to submit the dispute
to an expensive private arbitration process.
That requirement is designed
to discourage you
from disputing any aspect
of your automobile insurance company’s claim settlement.
Appraisal and arbitration
are not the same thing.
Appraisal addresses only the valuation
of your total-loss vehicle.
Arbitration can address any aspect
of your claim settlement.
If your claim is a third-party claim,
the automobile insurance company
that you’re dealing with
cannot require you
to submit a property-damage dispute
to an expensive private arbitration process.
Instead, you can resolve any aspect
of a property-damage dispute
at a very low cost
in a small-claims lawsuit
or, if need be, in a large-claims lawsuit.
If you live in a no-fault state,
then state law may require that
automobile-accident bodily-injury disputes
be resolved through private arbitration.
In most, if not all, states,
these no-fault private arbitration requirements
apply only to bodily-injury disputes.
They do not apply
to property-damage disputes
such as the destruction of your vehicle.
In the settlement of a first-party claim,
if you dispute
your automobile insurance company’s
settlement of your claim,
your automobile insurance company
may be able to limit
the amount of time that you have
to submit your dispute to private arbitration.
If your claim is a third-party claim,
the automobile insurance company
of the at-fault driver
cannot limit
the amount of time
that you have to dispute
the automobile insurance company’s valuation
or any other aspect of the claim settlement.
State law, in its statutes of limitations,
sets the number of years that you have
after your total-loss event
(or, perhaps, after your claim settlement)
to file a lawsuit
against an at-fault driver and his or her
automobile insurance company.
In most states,
on a third-party claim settlement,
you have at least two years
from the date of the loss event
in which to start a lawsuit
against the at-fault driver and his or her
automobile insurance company.
In many states,
on a third-party claim settlement,
you have more than two years
in which to start a lawsuit
against the at-fault driver and his or her
automobile insurance company.
In the settlement of a first-party claim,
your insurance coverage likely allows
your automobile insurance company
to take a deductible
from the compensation
that they pay you
for your total-loss vehicle.
If your claim is a third-party claim,
there is no deductible.
In the settlement of a first-party claim,
your automobile insurance policy
may cap or limit the total amount of money
that your automobile insurance company
will pay you in compensation
for your total-loss vehicle.
If your claim is a third-party claim,
the at-fault driver and his or her
automobile insurance company
cannot cap or limit
the total amount of money
that they have to pay you
in compensation
for your total-loss vehicle.
You are entitled to full compensation.
You are entitled to enough compensation
“to make you whole for your loss.”
(The at-fault driver’s
automobile insurance company
only has to pay you up to the limit
of the at-fault driver’s liability coverage.
The at-fault driver is responsible
for any remaining compensation to you
greater than the limit
of his or her liability coverage.
In this scenario, if you have uninsured-
and underinsured-motorist coverage,
you may wish to invoke that coverage.)
In the settlement of a first-party claim,
while your claim is open or reopened,
the automobile insurance company
may reimburse you only partially
for loss of use of your total-loss vehicle.
Ordinarily, to reimburse a claimant
for loss of use of his or her vehicle,
an automobile insurance company
provides the claimant
with a rental vehicle
at the automobile insurance company’s expense.
The automobile insurance company
continues to provide the claimant
with the rental vehicle
at the automobile insurance company’s expense
until the claimant receives
a settlement check
and the open claim is closed.
If a closed claim is reopened—
through, perhaps, the claimant’s exercise
of his or her right of recourse—
then the automobile insurance company
may again be required
to provide the claimant
with a rental vehicle
at the automobile insurance company’s expense
until the reopened claim is again closed.
If your claim is a third-party claim,
while your claim is open or reopened,
the automobile insurance company likely
is required to reimburse you fully
for loss of use of your total-loss vehicle.
Why these dramatic differences
in the rights that you have?
Here’s why.
One area of the law
governs the settlement
of first-party total-loss claims.
A different area of the law
governs the settlement
of third-party total-loss claims.
The law of contracts
governs the settlement
of first-party total-loss claims.
The law of negligence torts
governs the settlement
of third-party total-loss claims.
You_have_different_rights_for_first_and_third_party_claimsChapter
If your total-loss claim
is a first-party claim,
then the law of contracts governs
the settlement of your claim.
Law_of_contracts_governs_settlement_of_first_party_claimsChapter
When you buy automobile insurance,
you enter into a contract
with an automobile insurance company.
Your automobile insurance policy
is a written contract between you
and your automobile insurance company.
To be legally enforceable as a contract,
your automobile insurance policy
must meet the four legal requirements
of an enforceable contract:
-
Mutual agreement
-
Consideration
-
Capacity
-
Legality
Mutual agreement
In your automobile-insurance-policy contract,
you and your automobile insurance company
agree or promise
to perform certain duties and obligations
to one another.
Your automobile insurance policy
lays out those duties and obligations.
Among other promises,
you likely promise
to cooperate
with the automobile insurance company
in the investigation
of any claim that you file.
If you have collision coverage,
the automobile insurance company
likely promises that,
if your vehicle is totaled in a collision,
they will either replace your totaled vehicle
with a substantially similar vehicle
or they will pay you (or your lien holder)
the actual cash value of your totaled vehicle
(less a deductible).
If you have comprehensive coverage,
the automobile insurance company likely promises that,
if your vehicle is stolen
or destroyed in a fire, tornado,
hurricane, or riot;
in a collision with an animal;
by a falling object; or by vandalism;
they will either replace your total-loss vehicle
with a substantially similar vehicle
or they will pay you (or your lien holder)
the actual cash value of your total-loss vehicle
(less a deductible).
Consideration
A consideration is something of value.
In your contract
with the automobile insurance company,
you and your automobile insurance company
exchange things of value:
You pay insurance premiums
to the automobile insurance company.
The automobile insurance company
provides you
with the types and amounts of coverage
specified
in your automobile insurance policy.
Having automobile insurance
also provides you
with a sense of safety, security,
and emotional well-being.
In their advertising
and other promotional materials,
insurance companies emphasize
this promise of security and peace of mind.
Insurance companies’s advertising slogans
include these promises:
“You’re in good hands with Allstate.”
“Like a good neighbor, State Farm is there.”
“Nationwide is on your side.”
Capacity
You met the minimum age requirement
to enter into a legally binding contract.
You were sane at the time
that you entered into the contract.
You were sober at the time
that you entered into the contract.
Legality
The contract is entered into
for a legal purpose.
Your_automobile_insurance_policy_is_a_written_contractSubchapter
Under the law of contracts,
an automobile insurance company
has an obligation
of good faith and fair dealing
to the policyholder.
All contracts imply
a covenant of good faith and fair dealing
in the course of performance.
Applied to an automobile insurance policy,
the covenant of good faith and fair dealing
means that an automobile insurance company
has a duty of good faith and fair dealing
to properly, honestly, and fairly
investigate and handle a policyholder’s claim
and to enter into a prompt, fair,
reasonable,
and equitable settlement
with the policyholder.
Your_insurer_has_a_duty_to_you_of_good_faith_and_fair_dealingSubchapter
The law of contracts
requires
your automobile insurance company
to value your total‑loss vehicle
in the way
that your automobile insurance policy
says they will value it.
The fundamental principle of contract law
is this:
If one party to a contract
fails to fulfill or perform
his, her, or their promises and obligations
to the other party under that contract;
then a civil court can order
the party who fails to perform
to pay the other party
however much money is required
to put the other party
in the same financial position
that he, she, or they would have been in
had both parties
fulfilled their promises and obligations.
Under this principle,
if your automobile insurance company
does not value your total‑loss vehicle
in accordance with
what your automobile insurance policy says,
then you can sue
your automobile insurance company
in a civil court
for breach of contract.
If you win your lawsuit,
then the civil court can order
your automobile insurance company
to pay you enough additional money
to put you in the same financial position
that you would have been in
if the automobile insurance company
had valued your total‑loss vehicle
in accordance with
what your automobile insurance policy says.
Courts do not require that contracts
express promises and obligations
in detailed and explicit language.
For a court, the question is:
What expectations
does the language of the contract
create in the mind of a reasonable person?
Law_of_contracts_requires_insurer_to_follow_policySubchapter
Under contract law,
a contract can take away rights
that a party to that contract
otherwise would have.
Automobile insurance companies
love this part of the law!
Into your automobile insurance policy,
they insert clauses
that take away rights
that you otherwise would have
under contract law.
That’s a big part of the reason
that, often, you can get more money
in the settlement of a third-party claim
than you can get
in the settlement of a first-party claim.
If you think back on it,
you may recall
that you did not write
your automobile insurance policy.
Your automobile insurance company did.
Maybe you’ve never even read
your automobile insurance policy?
I suggest that you read it.
If you do,
you likely will discover some clauses
written into your policy
that take away rights
that you otherwise would have
under contract law.
You likely will discover language
that limits the amounts of money
that the automobile insurance company
has to pay you
for some aspects of your claim.
When you read
your automobile insurance policy,
you may discover an appraisal clause.
If your automobile insurance policy
contains an appraisal clause,
it may say something like this:
Appraisal
If the vehicle owner
and [the automobile insurance company]
cannot agree on the actual cash value
of the vehicle at the time of the loss,
either party may demand an appraisal.
The appraisal shall be conducted
according to the following procedure:
Each party shall select an appraiser.
These two shall select a third appraiser.
The written decision of any two appraisers
shall be binding.
The cost of the appraiser shall be paid
by the party who hired him or her.
The cost of the third appraiser
and other appraisal expenses
shall be shared equally by both parties.
If you fear
that the appraisal procedure
will cost you more money
than the amount of money
that you are likely to gain from it,
then you may say to yourself,
“Why bother?”
This is the reaction
the automobile insurance company wants.
Their appraisal requirement
is designed to discourage you
from challenging their valuation
of your total‑loss vehicle.
If you think about it,
the appraisal clause,
in effect, negates
your automobile insurance company’s
promise to value your total-loss vehicle
at its actual cash value.
“How so?”
If you do not agree
that your automobile insurance company’s
lowball valuation
is your total-loss vehicle’s
actual cash value,
then they can drag you
through an expensive appraisal process
for which
your automobile insurance company
hires an appraiser
who knows ploys
to keep your total-loss vehicle
from being appraised
at its actual cash value.
“That sucks!”
Well, yeah!
It truly does!
When an automobile insurance company
does something that,
in your opinion,
“sucks,”
a judge,
if he or she agrees with you,
might say or think that,
in his or her opinion,
the automobile insurance company
“acted in bad faith.”
Doesn’t that sound more elegant?
Judges tend not to like it
when a party to a contract
acts in bad faith.
Later on, when we discuss issues
that you may want to bring up
with your legal coach
if your claim is a first-party claim,
we’ll talk about bad-faith behavior
some more.
Your legal coach may be able
to suggest ways that you can use
your automobile insurance company’s
sucky bad-faith behavior
to your advantage.
In your automobile insurance policy,
for one or more types of coverage,
you may discover
an arbitration clause.
An arbitration clause may say
something like this:
Arbitration
-
If we and an “insured” do not agree:
-
Whether that person
is legally entitled to recover damages
under this coverage; or -
As to the amount of damages;
either party may make a written demand
for arbitration. In this event,
each party will select an arbitrator.
The two arbitrators will select a third.
If they cannot agree within 30 days,
either may request that selection
be made by a judge of a court
having jurisdiction. -
-
Each party will:
-
Pay the expenses it incurs; and
-
Bear the expenses
of the third arbitrator equally.
-
-
Unless both parties agree otherwise,
arbitration will take place in the county
in which the “insured” lives.
Local rules of law as to procedure
and evidence will apply.
A decision agreed to by two
of the arbitrators will be binding as to:-
Whether the “insured”
is legally entitled to recover damages; and -
The amount of damages.
-
-
Instead of this method,
we and the “insured” may agree
to use another method of arbitration.
If your automobile insurance policy
contains an arbitration clause,
then that clause
would more accurately be called
a private arbitration clause.
In private arbitration,
you select and hire a private arbitrator,
your automobile insurance company
selects and hires a private arbitrator,
and those two private arbitrators
hire a third private arbitrator.
You pay the arbitrator that you hired.
Your automobile insurance company
pays the arbitrator that it hired.
You and your automobile insurance company
split the cost of the third arbitrator.
Those three private arbitrators
decide your dispute
with your automobile insurance company
in private.
Private arbitrators are expensive.
Hence, private arbitration is expensive.
You would be much better off
having a claim-settlement dispute
with your automobile insurance company
resolved
by a small-claims judge
or by a small-claims arbitrator.
A small-claims arbitrator
is an employee of the court.
In most states, when you show up
for your small-claims court proceeding,
the court asks you
whether you want to have your case
heard by a judge or
heard by a court arbitrator.
If you choose to have your case
heard by a court arbitrator
and the automobile insurance company
agrees to have the case
heard by a court arbitrator,
then the court assigns your case
to a court arbitrator.
You have only one court arbitrator.
Your court arbitrator conducts
an arbitration proceeding
in much the same way
that a judge,
had you chosen a judge,
would conduct a trial.
You tell your story.
You present your paperwork.
You answer the court arbitrator’s questions.
If a lawyer
from the automobile insurance company
shows up,
he or she tells
the automobile insurance company’s
version of the story.
Your court arbitrator decides
how much money to award you.
You pay the court arbitrator nothing.
Don’t let
your automobile insurance policy
or your automobile insurance company
confuse you about the differences
between having a dispute resolved
by three expensive private arbitrators
and having a dispute resolved
by one no-cost small-claims-court arbitrator.
One purpose
of a private arbitration clause
in an automobile insurance policy
is the same as the purpose
of an appraisal clause:
to drive up the cost to you
of challenging
your automobile insurance company’s
settlement decisions—
and, thereby, discourage you
from challenging their decisions.
Another purpose of an arbitration clause
may be to take away your right
to sue for punitive damages
if your automobile insurance company
not only breaches the terms
of your automobile insurance policy
but also acts in bad faith,
conspires with its valuation-services vendor
to commit fraud, or engages
in other reprehensible misconduct.
In many states, private arbitrators
are prohibited by law
from awarding punitive damages.
Automobile insurance companies
also may include arbitration clauses
in their automobile insurance policies
because private arbitration proceedings
are private and confidential.
These private and confidential proceedings
allow an automobile insurance company
to hide from the public
revelations of the company’s
breaches of contract,
conspiracies to commit fraud,
and other reprehensible misconduct.
By contrast, decisions of courts, ordinarily,
are in the public record.
Unless an automobile insurance company
gets a court decision sealed,
the public can find out
how that company has screwed
its policyholders.
If your automobile insurance policy
requires you to resolve through arbitration
any dispute that you have
with your automobile insurance company,
then your policy likely also
limits the number of months or years
that you have
after your loss event
or after the settlement of your claim
to initiate arbitration proceedings.
The number of months or years
that you have
to initiate arbitration proceedings
is likely a shorter amount of time
than you would have
under your state’s statute of limitation
to initiate a lawsuit
for breach of contract
if your insurance policy did not require you
to submit your dispute to arbitration.
Some folks like to argue
that appraisal and private arbitration
are cheaper and faster
than civil court litigation.
Cheaper and faster
than what kind
of civil court litigation?
Maybe cheaper and faster
than civil court litigation
that has lots of discovery,
lots of motions,
and a jury trial.
But certainly neither cheaper nor faster
than civil court litigation
through a small-claims lawsuit.
My small-claims lawsuit against Travelers
cost me $20.
My court appearance lasted
less than an hour.
I got the court notice of award
a few days later.
I got my check from Travelers
two weeks after that.
The Travelers check included
reimbursement of my $20 filing fee.
Anybody who tells you
that appraisal or private arbitration
is always cheaper and faster
than civil court litigation
is blowing toxic fumes
up your tailpipe.
Do not succumb to this sort
of nonsensical rectal fumigation.
Policy_clauses_may_take_away_some_of_your_rightsSubchapter
Your automobile insurance company
likely has also inserted
into your automobile insurance policy
clauses that limit the amount of money
that they have to pay you
for loss of your vehicle,
for loss of use of your vehicle,
and as reimbursement
for expenses you incurred
as a result of your loss event.
In addition to taking away
some of the rights
that you otherwise would have
under contract law,
your automobile insurance policy
may limit how much money
the automobile insurance company
will pay you
for different aspects of your loss.
The coverage under which
you are filing your total-loss claim
likely has a deductible.
It may also have a dollar limit.
Clauses in your policy
may limit the dollar amounts
that your automobile insurance company
will pay you both per day and in total
for loss of use of your vehicle.
Clauses may limit the dollar amounts
that your automobile insurance company
will reimburse you for other expenses
that you incur as a consequence
of your loss of your vehicle.
Policy_clauses_may_limit_reimbursement_for_loss_of_useSubchapter
Your automobile insurance company
is not your friend.
The more clearly you understand
your automobile insurance policy,
the better you will understand
that your automobile insurance company
is not your friend.
They are not on your side.
Their loyalty is not to you.
Their loyalty is to their shareholders.
Every contract implies a covenant
of good faith and fair dealing.
Every contract
implies this covenant automatically
without the covenant being stated
in the agreement.
Your automobile insurance policy implies
a covenant
of good faith and fair dealing
without that covenant being stated
in your policy.
Yet, your automobile insurance company
may act like they’re your best friend
only so long as you don’t file any claims.
Then, when you file a claim,
all of a sudden,
your automobile insurance company
may begin
to treat your relationship
as an adversarial relationship.
That switch to an adversarial relationship
could become especially vivid
if you ever find yourself
in a scenario like this one:
-
You do not have collision coverage.
-
But you do have uninsured-
and underinsured-motorist coverage. -
An at‑fault driver
destroys your vehicle. -
He or she has no liability insurance
or has insufficient liability insurance
to cover your loss. -
You seek compensation for your loss
from your automobile insurance company
under your policy's uninsured‑
and underinsured‑motorist coverage
What happens?
When you buy uninsured‑
and underinsured‑motorist coverage,
you are, in effect, buying liability coverage
for the other driver.
In this scenario,
your automobile insurance company
may do what the other driver’s
automobile insurance company
would do if the other driver
did have liability coverage:
To keep from having to pay you
under your uninsured-
and underinsured motorist coverage,
your automobile insurance company
may argue or try to prove
that you were at fault for the collision—
not the other driver.
How would you like them apples?
Even with all these obstacles,
I believe you still have a good shot
at getting a fair valuation
of your total-loss vehicle
in a first-party total-loss claim.
Soon I will tell you
what I would do today
to get a fair valuation
of my total-loss vehicle
in a first-party total-loss claim.
Your_automobile_insurance_company_is_not_your_friendSubchapter
If your total-loss claim
is a third-party claim,
then the law of negligence torts
governs
the settlement of your claim.
If_third_party_claim_law_of_torts_governsChapter
If an at-fault driver,
through an act of negligence,
causes the destruction
of your vehicle,
then the law calls
that harm to you
a negligence tort.
In law, a harm to one person
by another person
is called a tort.
When a harm to one person occurs
because another person was negligent,
that harm is called a negligence tort.
Negligence is the failure to behave
with the level of care
that a reasonable person
would have exercised
under the same circumstances.
Hence, when another driver,
through an act of negligence,
causes the destruction of your vehicle,
the destruction of your vehicle
is called a negligence tort.
Third_party_claim_is_for_negligence_tortSubchapter
The law of negligence torts
requires
the at-fault negligent driver
and his or her
automobile insurance company
to pay you enough money
to make you financially whole
for the harms done to you.
The fundamental principle
of the law of negligence torts is this:
When one person,
through an act of negligence,
harms another person;
the negligent person
(or his or her insurance company)
is obligated to pay
the victim of the negligent act
enough money
to make the victim whole
for his or her loss.
That is, the negligent person
(or his or her insurance company)
is obligated to pay
the victim of the negligent act
enough money
to make the victim as well off financially
as he or she was before the negligent act.
If you are in an automobile accident,
harms and losses to you can include:
-
Destruction of your automobile
(which, legally speaking,
is property damage), -
Loss of use of your automobile,
and -
Out‑of‑pocket expenses
associated with the accident.
Harm and losses to you
and to your passengers
can also include:
-
Personal injury,
-
Pain,
-
Suffering,
-
Loss of income,
-
Loss of earning ability, and
-
Diminishment of quality of life.
Under tort law,
you and your passengers
are entitled to compensation
for each and every one
of these harms and losses.
If you sue an at-fault driver and his or her
automobile insurance company
for negligence tort,
then, for a court, the question is:
What amount of compensation
will make you whole
for each and every harm and loss
that the at-fault driver’s negligence
caused you?
Tort_law_requires_tort_feasor_to_make_you_wholeSubchapter
If an at-fault driver’s
automobile insurance company
did not value your total‑loss vehicle
at enough money
for you to buy
a substantially similar vehicle
from a local automobile dealership,
then you can sue the at-fault driver
and his or her
automobile insurance company
for negilgence tort.
You can sue them
for the difference
between the amount of money
that they paid you
and the amount of money
that they should have paid you
to make you financially whole
for the harms done to you.
Under tort law,
if, in the settlement
of your third-party total-loss claim,
the at-fault driver’s
automobile insurance company
did not pay you enough compensation
to make you whole
for the destruction of your vehicle,
for loss of use of your vehicle,
and as reimbursement
for expenses that you incurred
because of the destruction of your vehicle;
then you can sue
the at-fault driver and his or her
automobile insurance company
for negligence tort.
In most if not all states,
when a total-loss claimant
disputes a settlement amount,
state law or insurance company regulations
require the automobile insurance company
to go ahead and pay the total-loss claimant
the amount of money that is not in dispute.
You then can sue
the at-fault driver and his or her
automobile insurance company
for the difference
between the amount of money
that the automobile insurance company
paid you
and the amount of money
that you believe
the automobile insurance company
should have paid you.
You can sue
the at-fault driver and his or her
automobile insurance company
in civil court
at very low cost in a small-claims lawsuit
or, if need be, in a large-claims lawsuit.
When a court
orders an at-fault driver’s automobile insurance company
to pay a claimant additional money
to make him or her whole for his or her loss,
courts and lawyers call
the awarded money
compensatory damages
or actual damages.
If, to get a fair valuation
of your total-loss vehicle,
you need to sue,
then, to prepare to sue,
you likely will want to research
how much money—
including sales tax and title-transfer fees—
you can reasonably expect to pay
to buy
a substantially similar vehicle
from a local automobile dealership.
As your vehicle valuation amount,
you may wish to use
your total-loss vehicle’s
J.D. Power Buy from Dealer price
plus sales tax and title-transfer fees.
In most if not all states,
the state commissioner of insurance
recognizes
a total-loss vehicle’s
J.D. Power Buy from Dealer price
as an authoritative calculation
of a total-loss vehicle’s
actual cash value.
Courts rarely award punitive damages
in negligence tort lawsuits.
To win punitive damages in a tort lawsuit,
you likely would have to prove
that the at-fault driver
engaged in an intentional tort,
engaged in wanton and willful misconduct,
or engaged in both.
Above, I had a lot to say about
how an automobile insurance company
can take away many of your rights
in the settlement
of a first-party total-loss claim.
There’s not nearly as much to say
about your rights
in the settlement
of a third-party total-loss claim
because your rights
are simple and straightforward:
The automobile insurance company
cannot take any of your rights away.
The law of negligence torts
requires the at-fault negligent driver
and his or her
automobile insurance company
to pay you enough money
to make you financially whole
for the harms done to you.
To_get_fair_value_sue_for_negligence_tortSubchapter
If harms and losses to you
or to your passengers
include personal injury,
pain, suffering,
loss of income,
loss of earning ability,
diminishment of quality of life,
or similar harms and losses;
then speak to a personal injury attorney.
If you or your passengers
need a personal-injury attorney,
check my county-by-county listing
of claim-settlement professionals
for your state.
Here, at wasyourcartotaledorstolen.com,
I address only:
-
How to get fully compensated
for the destruction of your automobile, -
How to get fuly compensated
for loss of use of your automobile,
and -
How to get fully compensated
for your out‑of‑pocket expenses
directly associated
with the destruction of your vehicle.
If the accident’s harms and losses to you
or to your passengers
include personal injury, pain, suffering,
loss of income, loss of earning ability,
diminishment of quality of life,
or similar harms and losses;
then I recommend that you speak
with a personal‑injury attorney.
Getting “made whole”
for harm to your person
is far, far more complicated and difficult
than getting “made whole”
for the destruction of your vehicle.
The amount of money at stake
likely fully justifies the expense
of hiring an attorney
to represent you.
In my research,
I happened to learn
how juries often calculate
how much money to award
to personal-injury victims
for pain and suffering.
Frequenlty, to arrive at a dollar amount
for pain and suffering,
a jury will triple the amount of money
that the injury victim
paid for medical care
for his or her injuries.
Hence, if you do not get the medical care
that your injuries require,
then, in a lawsuit for bodily injury,
you may not get
the compensation
that your pain and suffering merit.
If you think about it,
you will realize that,
under this methodology,
an injured person
who has good health insurance
gets more money
for his or her pain and suffering
than a person
who suffered the same injuries
gets
if he or she has no health insurance
or has mediocre health insurance.
“How do you figure that?”
A person who has good health insurance
can pay more money for more medical care
than a less fortunate person can pay.
Then, when, to calculate
the amount of money
to award for pain and suffering,
a jury triples
the amount of money
that the injured person paid for medical care,
the fortunate injured person
gets a lot more money
for his or her pain and suffering
than the less fortunate person gets—
even though
the less fortunate person
has the same injuries
and the same pain and suffering.
If you or any of your passengers
suffered personal injury
and you do not yet have
a personal injury attorney,
I have invited personal injury attorneys
to advertise their services
in my county-by-county listing
of claim-settlement professionals
for your state.
To see if a personal injury attorney
has listed his or her services
for your state and county,
at the top of your screen,
click the map of the United States,
then click your state,
then click the icon for attorneys,
then click your county.
If_harms_include_personal_injury_speak_to_a_personal_injury_attorneyChapter
Nota bene
Jerry Marlow is not an attorney. Neither information nor opinions published on this site constitute legal advice. This site is not a lawyer referral service. No attorney‑client or confidential relationship is or will be formed by use of this site. Any attorney listings on this site are paid attorney advertising. In some states, the information on this website may be considered a lawyer referral service.
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