To make your draft letter
to the automobile insurance company
more consistent
with the laws
of New York,
vet and edit your draft letter
against the laws of New York
that I copied and pasted below.
In the “What I would do today” module
of wasyourcartotaledorstolen.com,
I told you that,
if I had not yet agreed
to a valuation amount
for my total-loss vehicle,
then I would write a letter
to the automobile insurance company.
In that letter:
-
I would find fault
with the valuation methodology
that the automobile insurance company’s
valuation-services vendor
used to produce their valuation
of my total-loss vehicle. -
If the automobile insurance company
sent me a deeply flawed
market valuation report
like the CCC market valuation report
that Travelers sent to me
or like the CCC market valuation report
that Maria’s insurance company
sent to her, then I might argue
that the valuation services vendor
had motive, means, and opportunity
to generate an unfair, inaccurate,
low valuation for my total-loss vehicle. -
I would reject
the automobile insurance company’s
valuation offer. -
I would propose
that the automobile insurance company
value my total-loss vehicle
at my total-loss vehicle’s
J.D. Power Buy from Dealer price. -
I would argue
that the J.D. Power Buy from Dealer price
for my total-loss vehicle
is a fair and unbiased calculation
of my total-loss vehicle’s
actual cash value.
Some parts of my letter would be different
depending on whether my total-loss claim
was a first-party claim or a third-party claim.
Then, in the “Let’s get to work” module,
I offered you
polite and muscular model letters
in docx format that,
if you wish to do so,
you can use as the starting point
for your letter
to the automobile insurance company
if you have not yet settled
your total-loss claim.
I suggested that you edit your draft letter
to make your letter consistent
with your total-loss vehicle’s
J.D. Power valuation,
make your letter consistent
with the CCC market valuation report
or other market valuation report
that you received
from the automobile insurance company,
and, if your total-loss claim
is a first-party claim,
make your letter consistent
with what your automobile insurance policy says.
Now I take you through another way
in which you may wish
to edit your draft letter.
The laws that regulate
how automobile insurance companies
are required to value total-loss vehicles
and settle total-loss claims
are different in different states.
Hence, if you are using
my model letters
as the starting point for your letter
to the automobile insurance company,
then you or the attorney with whom you meet
will need to vet your draft letter
against the laws of your state.
You or the attorney
will need to edit your draft letter
to make it fully consistent
with the laws of your state.
To make it possible for you
to vet and edit your draft letter
against the laws of your state,
I have copied and pasted below
what I believe to be
the most relevant and useful provisions
of the laws of New York
that regulate
how automobile insurance companies
that do business in New York
are required to value total-loss vehicles
and settle total-loss claims.
If you read through the excerpts
of the laws below,
you may be able to make
some of the required changes,
modifications, and deletions
to your draft letter yourself.
Where you are not sure what changes,
modifications, or deletions to make
to your draft letter,
you may want to leave them
for the attorney to make
when you meet with her or him.
If you have not done so already
(and you wish to do so),
download one of my starter documents.
If your total-loss claim is a first-party claim, download
Marlow_First_party_Not_yet_settled_letter.docx.
If your total-loss claim is a third-party claim, download
Marlow_Third_party_Not_yet_settled_letter.docx.
If you have not done so already,
in your word-processing software,
use “Find and replace” ➞ “Replace all”
to replace the specifics
of my fictitious total-loss claim
with the specifics
of your total-loss claim.
Print the draft document.
Your draft docucment
will be easier to work with
if you print it on only one side
of the paper.
Follow the instructions
that I embedded in the draft document.
Depending on whether your total-loss claim
is a first-party claim
or a third-party claim
and depending on whether you choose
to work with my polite model letter,
to work with my muscular model letter,
or to blend the two model letters;
you need to know or need to find
or need to ask an attorney
the answers to one
of the following sets of questions:
Questions for a first-party claim.
Questions for a third-party claim.
vet_your_draft_letter_against_your_state_s_lawsChapter
If your total-loss claim
is a first-party claim,
then, to adapt
my first-party model letters
to the laws of your state,
you need to know or need to find
or need to ask an attorney
the answers to these sets of questions.
In my polite model letter
and in my muscular model letter,
I suggest that you add, leave in,
or take out certain sentences
depending on what your state’s laws
say about a particular aspect of the law.
To decide what to do
if you are using either of my model letters
as the starting point for your letter,
here are the questions
that you need to know or need to find
or need to ask an attorney
the answers to.
FIRST-PARTY total-loss claim.
I’ve included these questions
in the docx model letters
just before each letter.
In your printout of the docx document,
underneath each question,
you will find Yes ( ) No ( ) check offs.
FIRST-PARTY total-loss claim.
When, in a section of the law,
you find the answer to a question,
you may wish to download a PDF
of that section of the law.
To do so,
at the end of that section of the law,
click “Verify statute or Download PDF.”
You may wish to print those PDFs.
On each printout,
next to the paragraph of the law
that answers a question,
you may wish to write down
the question that the paragraph answers.
(Do not write down
just the question number because,
when you edit your starter document,
the question numbers will adjust
to your changes.)
If you follow this procedure,
then those marked-up PDF printouts
may facilitate your conversation
with the attorney with whom you meet.
FIRST-PARTY total-loss claim.
questions_of_law_for_first_party_total_loss_claimsChapter
To adapt
my polite first‑party model letter
to the laws of your state,
you need to know or need to find
or need to ask an attorney
the answer to this question.
If your state’s laws mention N.A.D.A. Guides
as an approved source
of valuations of total-loss vehicles,
then, most likely,
your state’s commissioner of insurance
has approved J.D. Power
as an authorized source of valuations
for total-loss vehicles.
In 2015, J.D. Power acquired
NADA’s Used Car Guide
and www.nadaguides.com.
The company has rebranded
NADA Guides as J.D. Power
and rebranded www.nadaguides.com
as www.jdpower.com.
Whether your state’s laws
mention N.A.D.A. Guides or not,
to be sure of the correct answer
to this question,
ask the attorney with whom you meet.
-
Does your state’s
commissioner of insurance
approve J.D. Power
as an authorized source
of valuations for total-loss vehicles?
FIRST-PARTY total-loss claim.
questions_of_law_for_first_party_polite_letterSubchapter
To adapt
my muscular first‑party model letter
to the laws of your state,
you need to know or need to find
or need to ask an attorney
the answers to these questions.
In many states, state law says that,
for a comp vehicle to qualify
as substantailly similar
to a total-loss vehicle,
the comp vehicle must be
the same make, same model,
same model year, same trim level,
same major options,
and have similar mileage.
In some states, state law goes on
to limit the mileage difference
between a comp vehicle
and a total-loss vehicle.
For example, the New York
administrative code that governs
automobile physical damage claims
says:
“ ‘Substantially similar vehicle’ means
a vehicle of the same make, model, year
and condition, including all major options
of the insured vehicle. Mileage
must not exceed that of the insured vehicle
by more than 4,000 miles.”
-
Do your state’s laws say that,
for a comp vehicle to qualify
as substantially similar or comparable
to a total-loss vehicle,
the comp vehicle’s mileage
must be similar
to the total-loss vehicle’s mileage? -
Do your state’s laws go on
to limit the mileage differences
between total-loss vehicles
and substantially similar
or comparable vehicles?
FIRST-PARTY total-loss claim.
In most states,
courts have decided that the state’s
automobile insurance regulations
take away
a first-party claimant’s right to sue
his or her automobile insurance company
for punitive damages
(also called exemplary damages)
if his or her automobile insurance company
not only acts in breach of contract
but also engages
in reprehensible bad-faith misconduct.
These court decisions typically argue
that only the state’s
commissioner of insurance
can fine or otherwise punish
an automobile insurance company
for engaging
in unfair claim settlement practices
and in reprehensible misconduct.
In a few states, however,
the laws that regulate
how automobile insurance companies
that do business in the state
are required to value total-loss vehicles
and settle total-loss claims
explicitly give total-loss claimants
the right to sue
his or her automobile insurance company
for punitive or exemplary damages
if his or her automobile insurance company
not only acts in breach of contract
but also engages
in reprehensible bad-faith misconduct.
-
Do court decisions in your state
take away your right to sue
your automobile insurance company
for punitive or exemplary damages
if your automobile insurance company
not only acts in breach of contract
but also engages
in reprehensible bad-faith misconduct?
Most likely, you will need
to pose this question
to the attorney with whom you meet
because the answer to this questions
depends on court decisions.
-
Or do the regulatory laws of your state
explicitly give you the right to sue
your automobile insurance company
for punitive or exemplary damages
if your automobile insurance company
not only acts in breach of contract
but also engages
in reprehensible bad-faith misconduct?
You may be able to find
the answer to this question
in your state’s laws below.
FIRST-PARTY total-loss claim.
In many states, court decisions say
that an automobile insurance company
is not responsible for the validity
of valuation opinions
that it buys
from other corporations.
The regulatory laws of a few states
say that an automobile insurance company
is responsible
for the validity of valuations
that it uses
to value claimants’ total-loss vehicles.
-
Do the regulatory laws of your state
hold your automobile insurance company
responsible for the validity
of its valuation of your total loss vehicle?
FIRST-PARTY total-loss claim.
(The discussion and question that follow
are the same as for question 1. above
for the polite model letter.)
If your state’s laws mention N.A.D.A. Guides
as an approved source
of valuations of total-loss vehicles,
then, most likely,
your state’s commissioner of insurance
has approved J.D. Power
as an authorized source of valuations
for total-loss vehicles.
In 2015, J.D. Power acquired
NADA’s Used Car Guide
and www.nadaguides.com.
The company has rebranded
NADA Guides as J.D. Power
and rebranded www.nadaguides.com
as www.jdpower.com.
Whether your state’s laws
mention N.A.D.A. Guides or not,
to be sure of the correct answer
to this question,
ask the attorney with whom you meet.
-
Does your state’s
commissioner of insurance
approve J.D. Power
as an authorized source
of valuations for total-loss vehicles?
FIRST-PARTY total-loss claim.
questions_of_law_for_first_party_muscular_letterSubchapter
Keep an eye out
for paragraphs of the law
that may prove useful to you
if your automobile insurance company
does not agree to the valuation amount
for your total-loss vehicle
that you propose in your letter.
While you are looking for the answers
to the previous questions
for your first-party total-loss claim,
you may wish to keep an eye out
for answers to a few questions
that are outside the scope
of your letter
to your automobile insurance company.
The answers to these questions
may prove useful to you
if your automobile insurance company
does not agree to the valuation amount
that you propose in your letter.
For each of these questions too,
you may wish
to download, print, and mark up
a PDF of the section of the law
that answers the question.
FIRST-PARTY total-loss claim.
If you dispute the valuation amount
that your automobile insurance company
proposes for your total-loss vehicle,
the laws of your state may require
your automobile insurance company
to go ahead and pay you
the amount of money
that is not in dispute.
The amount of money
that is not in dispute
includes the valuation amount
for your total-loss vehicle
that your automobile insurance company
proposed.
To require
your automobile insurance company
to go ahead and pay you
the valuation amount
that is not in dispute,
the laws of your state
may say something like this:
If an insurer and the insured
or third-party claimant are unable to agree
on the value of the automobile,
an insurer shall pay the insured
or third-party claimant
the amount of the automobile’s value
that is not in dispute
as provided in section 3,
chapter 65, Oregon Laws 2009.
An insurer is not obligated
to pay the undisputed amount
until the insured
or third-party owner of the automobile:
-
(a) Agrees to execute documents
sufficient to transfer ownership
of the automobile
to the insurer; and -
(b) Authorizes the insurer,
at the insurer’s expense,
to move the automobile
to a disclosed location
selected by the insurer,
where the automobile
will remain available
for inspection and evaluation
for not fewer than 14 calendar days.
After the expiration of the 14-day period,
the insurer may proceed
with the salvage sale of the automobile.
-
If you dispute the valuation amount
that your automobile insurance company proposes for your total-loss vehicle,
do the laws of your state require
your automobile insurance company
to go ahead and pay you
the amount of money
that is not in dispute?
FIRST-PARTY total-loss claim.
In the laws below,
you may find that your state legislators
have given you a right of recourse.
If you have a right of recourse
and your automobile insurance company
refuses to value your total-loss vehicle
at its actual cash value,
then you may be able
to get additional money
from your automobile insurance company
if you exercise your right of recourse.
FIRST-PARTY total-loss claim.
If your state’s legislators
have given you a right of recourse,
they may also have given
your automobile insurance company
dubious ways to preclude or satisfy
your exercise of your right of recourse.
Your automobile insurance company
may be able to preclude your exercise
of your right of recourse if,
when they send you a settlement check,
they identify
an allegedly substantially similar vehicle
for sale at a local automobile dealership
that you allegedly can buy
for their valuation amount.
Likewise,
your automobile insurance company
may be able to satisfy your exercise
of your right of recourse if,
after you exercise your right of recourse,
they identify
an allegedly substantially similar vehicle
for sale at a local automobile dealership
that you allegedly can buy
for their valuation amount.
FIRST-PARTY total-loss claim.
If either of these possibilities come to pass,
you likely will want to inspect
your automobile insurance company’s
candidate right-of-recourse vehicle
to determine if that vehicle
is, in fact, substantially similar
to your total-loss vehicle—
same make, same model, same model year,
same major options, similar mileage,
and same or better condition.
You likely will want to verify
that your automobile insurance company’s
candidate right-of-recourse vehicle
is for sale at the automobile dealership
that your automobile insurance company
alleges at the price that
your automobile insurance company alleges.
FIRST-PARTY total-loss claim.
If the laws of your state
give you a right of recourse,
counting from the day
that your automobile insurance company
puts the initial settlement check in the mail,
you likely have only so many days
in which to exercise your right of recourse
or you lose your right of recourse.
FIRST-PARTY total-loss claim.
-
Do the laws of your state
give you a right of recourse? -
If you have a right of recourse,
do the laws of your state allow
an automobile insurance company
to preclude your exercise
of your right of recourse if,
when they send you a settlement check,
they identify
a substantially similar vehicle
for sale at a local automobile dealership
that you can buy
for their valuation amount? -
If you have a right of recourse,
do the laws of your state allow
your automobile insurance company
to satisfy your exercise
of your right of recourse if,
after you exercise your right of recourse,
they identify
a substantially similar vehicle
for sale at a local automobile dealership
that you can buy
for their valuation amount? -
If you have a right of recourse,
how many days
after your automobile insurance company
sends you a settlement check
do you have to exercise
your right of recourse
before you lose it?
FIRST-PARTY total-loss claim.
In some states, the law allows
an automobile insurance company
to take away
a first-party claimant’s right of recourse
if the automobile insurance company
invokes the appraisal clause
in the claimant’s automobile insurance policy.
-
In your state,
do you lose your right of recourse
if your automobile insurance company
invokes the appraisal clause
in your automobile insurance policy?
FIRST-PARTY total-loss claim.
The laws of some states prohibit
an automobile insurance company
from saying that,
if you cash or deposit a settlement check,
then, thereby, you agree to the settlement.
Such a prohibition may use such language
as this:
“No insurer shall issue a check or draft
in payment of a claim that contains
any language or provision that implies
or states that acceptance of the check or draft
constitutes a final settlement or release
of any or all future obligations
arising out of the loss.”
-
Do the laws of your state prohibit
an automobile insurance company
from saying that, if you cash or deposit
a settlement check, then, thereby,
you agree to the settlement?
FIRST-PARTY total-loss claim.
questions_of_law_in_case_first_party_letter_failsSubchapter
The legislators of a few states
give rights to first-party claimants
that legislators of other states
take away
from first-party claimants.
Are your state legislators right givers?
Or right takers?
At least one state
has a consumer-protection law that says
an automobile insurance company
cannot require a first-party total-loss claimant
to resolve a claim-settlement dispute
through private arbitration unless
the claimant’s automobile insurance policy
allows the claimant to resolve the dispute
through a small-claims lawsuit instead.
-
Do your state’s consumer-protection laws
give first-party total-loss claimants
the right to have a dispute resolved
through a small-claims lawsuit
in lieu of having that dispute resolved
through private arbitration?
FIRST-PARTY total-loss claim.
In a few states,
if a party to a written contract
not only breaches the terms of the contract
but also acts in bad faith,
the laws of the state
regard that act of bad faith
as a tort against the non-breaching party
to the contract.
-
In your state,
if your automobile insurance company
not only breaches the terms
of your automobile insurance policy
but also acts in bad faith,
does their bad-faith misconduct
give you a cause of action
against them under tort law? -
If the answer
to the previous question is yes,
then is your cause of action under tort law
exempt from your automobile insurance policy’s arbitration clause?
FIRST-PARTY total-loss claim.
To skip over questions
for a third-party claim, click here.
FIRST-PARTY total-loss claim.
questions_of_first_party_consumer_protection_lawsSubchapter
If your total-loss claim
is a third-party claim,
then, to adapt
my third-party model letters
to the laws of your state,
you need to know or need to find
or need to ask an attorney
the answers to these sets of questions.
In my polite model letter
and in my muscular model letter,
I suggest that you add, leave in,
or take out certain sentences
depending on what your state’s laws
say about a particular aspect of the law.
To decide what to do
if you are using either of my model letters
as the starting point for your letter,
here are the questions
that you need to know or need to find
or need to ask an attorney
the answers to.
THIRD-PARTY total-loss claim.
I’ve included these questions
in the docx model letters
just before each letter.
In your printout of the docx document,
underneath each question,
you will find Yes ( ) No ( ) check offs.
THIRD-PARTY total-loss claim.
When, in a section of the law,
you find the answer to a question,
you may wish to download a PDF
of that section of the law.
To do so,
at the end of that section of the law,
click “Verify statute or Download PDF.”
You may wish to print those PDFs.
On each printout,
next to the paragraph of the law
that answers a question,
you may wish to write down
the question that the paragraph answers.
(Do not write down
just the question number because,
when you edit your starter document,
the question numbers will adjust
to your changes.)
If you follow this procedure,
then those marked-up PDF printouts
may facilitate your conversation
with the attorney with whom you meet.
THIRD-PARTY total-loss claim.
questions_of_law_for_third_party_total_loss_claimsChapter
To adapt
my polite third‑party model letter
to the laws of your state,
you need to know or need to find
or need to ask an attorney
the answer to this question.
If your state’s laws mention N.A.D.A. Guides
as an approved source
of valuations of total-loss vehicles,
then, most likely,
your state’s commissioner of insurance
has approved J.D. Power
as an authorized source of valuations
for total-loss vehicles.
In 2015, J.D. Power acquired
NADA’s Used Car Guide
and www.nadaguides.com.
The company has rebranded
NADA Guides as J.D. Power
and rebranded www.nadaguides.com
as www.jdpower.com.
Whether your state’s laws
mention N.A.D.A. Guides or not,
to be sure of the correct answer
to this question,
ask the attorney with whom you meet.
-
Does your state’s
commissioner of insurance
approve J.D. Power
as an authorized source
of valuations for total-loss vehicles?
THIRD-PARTY total-loss claim.
questions_of_law_for_third_party_polite_letterSubchapter
To adapt
my muscular third‑party model letter
to the laws of your state,
you need to know or need to find
or need to ask an attorney
the answers to these questions.
In many states, state law says that,
for a comp vehicle to qualify
as substantailly similar
to a total-loss vehicle,
the comp vehicle must be
the same make, same model,
same model year, same trim level,
same major options,
and have similar mileage.
In some states, state law goes on
to limit the mileage difference
between a comp vehicle
and a total-loss vehicle.
For example, the New York
administrative code that governs
automobile physical damage claims
says:
“ ‘Substantially similar vehicle’ means
a vehicle of the same make, model, year
and condition, including all major options
of the insured vehicle. Mileage
must not exceed that of the insured vehicle
by more than 4,000 miles.”
-
Do your state’s laws say that,
for a comp vehicle to qualify
as substantially similar or comparable
to a total-loss vehicle,
the comp vehicle’s mileage
must be similar
to the total-loss vehicle’s mileage? -
Do your state’s laws go on
to limit the mileage differences
between total-loss vehicles
and substantially similar
or comparable vehicles?
THIRD-PARTY total-loss claim.
(The discussion and question that follow
are the same as for question 1. above
for the polite model letter.)
If your state’s laws mention N.A.D.A. Guides
as an approved source
of valuations of total-loss vehicles,
then, most likely,
your state’s commissioner of insurance
has approved J.D. Power
as an authorized source of valuations
for total-loss vehicles.
In 2015, J.D. Power acquired
NADA’s Used Car Guide
and www.nadaguides.com.
The company has rebranded
NADA Guides as J.D. Power
and rebranded www.nadaguides.com
as www.jdpower.com.
Whether your state’s laws
mention N.A.D.A. Guides or not,
to be sure of the correct answer
to this question,
ask the attorney with whom you meet.
-
Does your state’s
commissioner of insurance
approve J.D. Power
as an authorized source
of valuations for total-loss vehicles?
THIRD-PARTY total-loss claim.
questions_of_law_for_third_party_muscular_letterSubchapter
Keep an eye out
for paragraphs of the law
that may prove useful to you
if the automobile insurance company
does not agree to the valuation amount
that you propose in your letter
for your total-loss vehicle.
While you are looking for the answers
to the previous questions
for your third-party total-loss claim,
you may wish to keep an eye out
for answers to a few questions
that are outside the scope
of your letter
to the automobile insurance company.
The answers to these questions
may prove useful to you
if the automobile insurance company
does not agree to the valuation amount
that you propose in your letter.
For each of these questions too,
you may wish
to download, print, and mark up
a PDF of the section of the law
that answers the question.
THIRD-PARTY total-loss claim.
In some states, the laws that regulate
how automobile insurance companies
are required to value total-loss vehicles
and settle total-loss claims say
that those laws apply
only to first-party claims.
In some states, those laws say
that the laws apply to first-party claims
and to third-party claims.
In some states, those laws say
that all the laws apply to first-party claims
and only some of the laws
apply to third-party claims.
Ordinarily, in most states,
you have much stronger rights
in the settlement of a third-party claim
than you do
in the settlement of a first-party claim.
The automobile insurance company
that you’re dealing with
on your third-party claim
may think and act like
they can treat you
the same way
that they treat their policyholders
on those policyholders’ first-party claims.
The automobile insurance company
that you’re dealing with
on your third-party claim
may even try to trick you
into conforming
with claim-settlement regulations
that apply only to first-party claims.
Don’t let them!
To be savvy enough
to keep the automobile insurance company
that you’re dealing with
from treating you
like you’re a first-party claimant,
familiarize yourself
with which of your state’s
automobile insurance
claim-settlement laws—
if any—
apply to you and your claim.
If your state’s laws
consistently talk about “the insured,”
and never say that the laws
also apply to third-party claimants,
then that language strongly suggests
that those laws do not apply to you
or to your third-party claim.
You are not the insured.
The at-fault-driver policyholder
is the insured.
-
Do the laws of your state that regulate
how automobile insurance companies
are required to value total-loss vehicles
and settle total-loss claims
apply only to first-party claims? -
Or do all those laws
apply to both first-party claims
and third-party claims? -
Or do all the laws
apply to first-party claims
and only some of the laws
also apply to third-party claims?
THIRD-PARTY total-loss claim.
If you dispute the valuation amount
that the automobile insurance company
proposes for your total-loss vehicle,
the laws of your state may require
the automobile insurance company
to go ahead and pay you
the amount of money
that is not in dispute.
The amount of money
that is not in dispute
includes the valuation amount
for your total-loss vehicle
that the automobile insurance company
proposed.
To require
the automobile insurance company
to go ahead and pay you
the valuation amount
that is not in dispute,
the laws of your state
may say something like this:
If an insurer and the insured
or third-party claimant are unable to agree
on the value of the automobile,
an insurer shall pay the insured
or third-party claimant
the amount of the automobile’s value
that is not in dispute
as provided in section 3,
chapter 65, Oregon Laws 2009.
An insurer is not obligated
to pay the undisputed amount
until the insured
or third-party owner of the automobile:
-
(a) Agrees to execute documents
sufficient to transfer ownership
of the automobile
to the insurer; and -
(b) Authorizes the insurer,
at the insurer’s expense,
to move the automobile
to a disclosed location
selected by the insurer,
where the automobile
will remain available
for inspection and evaluation
for not fewer than 14 calendar days.
After the expiration of the 14-day period,
the insurer may proceed
with the salvage sale of the automobile.
-
If you dispute the valuation amount
that the automobile insurance company proposes for your total-loss vehicle,
do the laws of your state require
the automobile insurance company
to go ahead and pay you
the amount of money
that is not in dispute?
THIRD-PARTY total-loss claim.
The laws of some states
give third-party total-loss claimants
a right of recourse.
If you have a right of recourse
and the automobile insurance company
refuses to value your total-loss vehicle
at its actual cash value,
then you may be able
to get additional money
from the automobile insurance company
if you exercise your right of recourse.
THIRD-PARTY total-loss claim.
If your state’s legislators
have given you a right of recourse,
they may also have given
the automobile insurance company
dubious ways to preclude or satisfy
your exercise of your right of recourse.
The automobile insurance company
may be able to preclude your exercise
of your right of recourse if,
when they send you a settlement check,
they identify
an allegedly substantially similar vehicle
for sale at a local automobile dealership
that you allegedly can buy
for their valuation amount.
Likewise, the automobile insurance company
may be able to satisfy your exercise
of your right of recourse if,
after you exercise your right of recourse,
they identify
an allegedly substantially similar vehicle
for sale at a local automobile dealership
that you allegedly can buy
for their valuation amount.
THIRD-PARTY total-loss claim.
If either of these possibilities come to pass,
then you likely will want to inspect
the automobile insurance company’s
candidate right-of-recourse vehicle
to determine if that vehicle
is, in fact, substantially similar
to your total-loss vehicle—
same make, same model, same model year,
same major options, similar mileage,
and same or better condition.
You likely will want to verify
that the automobile insurance company’s
candidate right-of-recourse vehicle
is for sale at the automobile dealership
that the automobile insurance company
alleges at the price that
the automobile insurance company alleges.
THIRD-PARTY total-loss claim.
If the laws of your state
give you a right of recourse,
counting from the day
that the automobile insurance company
puts the initial settlement check in the mail,
you likely have only so many days
in which to exercise your right of recourse
or you lose your right of recourse.
THIRD-PARTY total-loss claim.
-
Do the laws of your state
give you a right of recourse? -
If you have a right of recourse,
do the laws of your state allow
an automobile insurance company
to preclude your exercise
of your right of recourse if,
when they send you a settlement check,
they identify
a substantially similar vehicle
for sale at a local automobile dealership
that you can buy
for their valuation amount? -
If you have a right of recourse,
do the laws of your state allow
the automobile insurance company
to satisfy your exercise
of your right of recourse if,
after you exercise your right of recourse,
they identify
a substantially similar vehicle
for sale at a local automobile dealership
that you can buy
for their valuation amount? -
If you have a right of recourse,
how many days
after the automobile insurance company
sends you a settlement check
do you have to exercise
your right of recourse
before you lose it?
THIRD-PARTY total-loss claim.
The laws of some states prohibit
an automobile insurance company
from saying that,
if you cash or deposit a settlement check,
then, thereby, you agree to the settlement.
Such a prohibition may use such language
as this:
“No insurer shall issue a check or draft
in payment of a claim that contains
any language or provision that implies
or states that acceptance of the check or draft
constitutes a final settlement or release
of any or all future obligations
arising out of the loss.”
-
Do the laws of your state prohibit
an automobile insurance company
from saying that,
if you cash or deposit
a settlement check, then, thereby,
you agree to the settlement?
THIRD-PARTY total-loss claim.
questions_of_law_in_case_third_party_letter_failsSubchapter
Questions about the laws of your state
to which the answers
may prove useful to you
if you end up suing
the at-fault driver and his or her
automobile insurance company
for the money
that the at-fault driver’s
automobile insurance company
cheated you out of.
The laws of some states
specify multiple sources
that an automobile insurance company
may use to come up
with an initial valuation offer
for a claimant’s total loss vehicle.
The laws then go on to say
that the automobile insurance company’s
initial valuation offer
cannot be lower
than the lowest valuation amount
from one of these approved sources.
The laws of some states say
that an automobile insurance company
may use as its initial valuation offer
a valuation generated by a valuation source
that uses a computerized data base
that is approved
by the state’s commissioner of insurance.
A state’s commissioner of insurance
may approve valuation sources
such as CCC Information Services
a.k.a. CCC Intelligent Solutions.
CCC Information Services
a.k.a. CCC Intelligent Solutions
produced the garbage-in-garbage-out
CCC market valuation report
for my total-loss vehicle
and produced
the GIGO CCC market-valuation report
for Maria’s total-loss vehicle.
Valuation sources that produce valuations
only for automobile insurance companies
and that use a computerized data base
to produce those valuations
likely produce the lowest valuations
of any of the approved sources.
Such valuation sources may have
motive, means, and opportunity
to undervalue your total-loss vehicle.
-
Do the laws of your state
specify multiple sources
that an automobile insurance company
may use to come up
with an initial valuation offer
for your total-loss vehicle? -
Do the laws of your state say
that the automobile insurance company’s
initial valuation offer
for your total-loss vehicle
cannot be lower
than the lowest valuation amount
from one of the approved sources? -
Do the laws of your state
allow an automobile insurance company
to use a valuation
generated by a valuation service
that uses a computerized data base?
THIRD-PARTY total-loss claim.
The laws of some states say
that an automobile insurance company
shall value a total-loss vehicle
at its actual cash value.
The laws of some states
define actual cash value.
-
Do the laws of your state say
that an automobile insurance company
shall value a total-loss vehicle
at its actual cash value? -
Do the laws of your state
define actual cash value?
THIRD-PARTY total-loss claim.
The laws of some states defnine
substantially similar vehicle
or comparable vehicle.
-
Do the laws of your state define substantially similar vehicle
or comparable vehicle?
Regardless of what the statutory laws
of your state say,
keep in mind
that 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 cannot negotiate
a fair valuation of your total-loss vehicle
with the automobile insurance company,
then you can refuse to agree
to the automobile insurance company’s
valuation of your total-loss vehicle.
You can dispute their valuation.
You can sue the at-fault driver
for the amount of money
that his or her
automobile insurance company
cheated you out of.
THIRD-PARTY total-loss claim.
questions_of_third_party_consumer_protection_lawsSubchapter
If it’s more work
than you wish to do
to vet and edit your draft letter
against New York’s laws,
then let the attorney
with whom you meet
vet and edit the letter for you.
I’m a do-it-yourself kind of person.
You may not be.
Or you may be too busy
with the rest of your life
to spend a lot of time
working on your total-loss claim.
If, for whatever reason,
you prefer not to vet and edit
a draft letter against your state’s laws,
don’t do it.
You will be sufficiently well prepared
to meet with an attorney
about your total-loss claim
so long as you provide him or her
with copies of:
-
The market valuation report
that you received
from the automobile insurance company
for your total-loss vehicle, -
The Monroney Label window sticker
for your total-loss vehicle, -
Your total-loss vehicle’s
J.D. Power Buy from Dealer price, -
The specs that the J.D. Power calculator
used to value your total-loss vehicle, -
Your draft letter
at whatever stage of development
it happens to be in, -
The police report on your vehicle’s
collision or theft, and -
If your claim is a first-party claim,
your automobile insurance policy.
If you provide the attorney
with these ingredients,
then he or she can turn the work
that you have done
into an effective letter and package.
skip_this_step_if_you_want_toChapter
Help me create model letters
tailored to the laws of every state.
Send me a few dollars.
Today I’m having to ask you
to do a lot more work
than I would like to.
I’m having to ask you
to vet and edit your draft letter
against the laws of your state
that I copied and pasted below.
As I continue to develop
wasyourcartotaledorstolen.com,
I hope to offer total-loss claimants
starter letters
for first-party total-loss claims
and starter letters
for third-party total-loss claims
that are tailored to the laws
of each and every state.
“Jesus, Jerry!
“That sounds like a helluva lot of work!”
Yeah, I know!
Shows you how much I hate seeing
giant, powerful, unethical corporations
rip off everyday Americans.
With starter letters that are tailored
to the laws of each and every state,
future total-loss claimants
who come to wasyourcartotaledorstolen.com
will have a lot less work to do.
They will be able to create draft letters
that require less of a local attorney’s time
to review, vet, tweak, and strengthen.
I’m itching to do the work.
In the left-hand column
next to each state’s laws,
I hope to give total-loss claimants
a guided tour of the laws that,
in their state, regulate
how automobile insurance companies
are required to value total-loss vehicles
and settle total-loss claims.
On that guided tour,
I plan to explain and comment on
the important provisions
of each state’s laws.
On that guided tour,
I plan to point out
the answers to questions
that, today, I have to ask you
to search for yourself.
On that guided tour,
I plan to point out which paragraphs
of each state’s laws read like
they were written
by a lobbyist who works
for automobile insurance companies.
Total-loss claimants
also will want to know
the answers to other questions
about the laws of their state
that do not appear in the state’s
automobile insurance regulatory laws.
Over time, as I continue my research
and as I receive more and more
pro bono publico guidance
(guidance for the public good)
from attorneys in each state;
I hope to post more and more answers
to these questions.
If I am able to achieve these goals,
then, over time, total-loss claimants
who come to wasyourcartotaledorstolen.com
will be able to gain a fuller,
more accurate, more precise,
and more powerful understanding
of the rights
that their state legislators
have given them
and of the rights
that their state legislators
have taken away from them.
Everyday Americans will be able
to have more knowledgeable
and more productive conversations
with local attorneys.
If everyday Americans
who are fed up
with automobile insurance companies
cheating them and ripping them off
will support my work;
then I may be able to build
my one-person efforts
into an organization.
With an organization,
we may be able to persuade
our state legislators
(and perhaps our national legislators)
to rewrite some of the laws
that make it so easy
for automobile insurance companies
to screw us all.
If you would like to help me
teach everyday Americans
how to get fair valuations
of their total-loss vehicles,
then, at the top right of your screen,
click this image:
Send me a few dollars.
With your help, I’m just getting started.
help_me_create_letters_tailored_to_laws_of_every_stateChapter
The laws of New York
that regulate
how automobile insurance companies
that do business
in New York
are required
to value total-loss vehicles
and settle total-loss claims.
My Comments
New York State Laws
The laws that govern
how insurance companies
that do business in New York State
are required to value total‑loss vehicles
and settle total‑loss claims are part of
the New York Codes, Rules and Regulations.
These laws refer
to the automobile insurance company
as “the insurer.”
These laws refer to you the claimant
as “the insured.”
New York Codes, Rules and Regulations
Title 11 - INSURANCE
Chapter IX - Unfair Trade Practices
Part 216 - Unfair Claims Settlement Practices And Claim Cost Control Measures
Current through Register Vol. 44, No. 38, September 21, 2022
New York State law defines
the value of your total‑loss vehicle
as its actual cash value.
The law defines actual cash value
as the amount of money
for which you can reasonably expect
to replace your total‑loss vehicle
with a substantially identical vehicle—
including sales tax.
These definitions implicitly recognize
that you the claimant
are in the position of a retail buyer.
Hence, actual cash value is
the retail price plus sales tax
of a substantially identical vehicle
for sale at a local automobile dealership.
Section 216.6 -
Standards for prompt, fair and equitable settlements
-
(a) In any case where there is no dispute as to coverage, it shall be the duty of every insurer to offer claimants, or their authorized representatives, amounts which are fair and reasonable as shown by its investigation of the claim, providing the amounts so offered are within policy limits and in accordance with the policy provisions.
-
(b) Actual cash value, unless otherwise specifically defined by law or policy, means the lesser of the amounts for which the claimant can reasonably be expected to:
-
(1) repair the property to its condition immediately prior to the loss; or
-
(2) replace it with an item substantially identical to the item damaged. Such amount shall include all monies paid or payable as sales taxes on the item repaired or replaced.
-
Citation:
N.Y. Comp. Codes R. & Regs. Tit. 11 § 216.6
Verify statute or Download PDF
If verify link fails, Google:
casetext.com, the citation.
If an insurance company representative
mumbles something to you about
your total‑loss vehicle’s “trade‑in value,”
cut him or her off with these words:
“New York State’s insurance regulations
define actual cash value
as the amount of money
that a retail buyer
would have to pay
to buy a substantially similar vehicle
at a local automobile dealership.”
“Trade‑in values are totally irrelevant!”
“You should know that.”
PAUSE. PAUSE.
“Maybe you do?”
Recently, quite a few total‑loss claimants
have successfully sued
automobile insurance companies
for failing to include sales tax
in the compensation
that they paid to the claimants
for their total‑loss vehicles.
Make sure that the insurance company
includes the sales tax
in your compensation.
As section 216.7 says,
the regulations in this section
apply to the settlement of your claim
if your vehicle was totaled
and you filed your claim
under your automobile‑insurance policy’s
collision coverage.
As section 216.7 says,
the regulations in this section
also apply to the settlement of your claim
if your vehicle was stolen
and you filed your claim
under your automobile insurance policy’s
comprehensive coverage.
A subsequent section, 216.10, says
that section 216.7(a), (b)(4), (5), (6), (11), (12), (13); (c)(1), (3), (4); and 216.11
also apply to third‑party claims.
Hence, almost all the regulations
in section 216.7
apply to the settlement of all
total‑loss automobile insurance claims.
Section 216.7 -
Standards for prompt, fair and equitable settlement of motor vehicle physical damage claims
This section is applicable to claims arising under motor vehicle collision and comprehensive coverages.
New York State law defines
a substantially similar vehicle
as a vehicle of the same make,
model, year and condition,
including all major options
of the insured vehicle.
Mileage must not exceed
that of the insured vehicle
by more than 4,000 miles
or 10 percent of the mileage
on the vehicle at the date of loss,
whichever is greater.
To qualify legally as substantially similar,
a comp vehicle
must meet all these criteria—
each and every one.
If the insurance company
is trying to cheat you out of a fair valuation,
then, most likely, the vehicles
that the insurance company
uses as comp vehicles
to value your total‑loss vehicle
will not meet all these criteria.
If you end up suing the insurance company,
then you may want to investigate
and identify the ways in which
the insurance company’s comp vehicles
fail to meet the legal requirements
of substantially similar.
-
(a) The following shall govern the construction of the terms used in this section:
-
(4) Substantially similar vehicle shall mean a vehicle of the same make, model, year and condition, including all major options of the insured vehicle. Mileage must not exceed that of the insured vehicle by more than 4,000 miles or 10 percent of the mileage on the vehicle at the date of loss, whichever is greater.
-
(5) Business day shall mean a day other than Saturday, Sunday or a New York State legal holiday.
-
(10) Local market area shall mean a 100-mile radius, limited to within the United States, of the place of principal garagement of the insured’s motor vehicle.
-
New York State law deems
a damaged vehicle
to be totaled
if the cost to repair the vehicle
exceeds 75%
of the vehicle’s actual cash value.
Hence, a total‑loss claim is a claim
in which the cost to repair
the damage to the vehicle
is 75% or more of the cost
to replace the vehicle
with a substantially similar vehicle.
A partial‑loss claim is a claim
in which the damage to the vehicle
can be repaired
for less than 75% of the cost
to replace the vehicle
with a substantially similar vehicle.
-
(b) Adjustment of partial losses.
-
(16) Salvage vehicle branding.
-
(i) This paragraph shall be applicable to claims involving vehicles that are eight model years or newer on the date of the loss.
-
(ii) If the insurer determines that the cost to repair a damaged vehicle exceeds 75 percent of the vehicle’s actual cash value and if the insurer does not take possession of the vehicle for disposition as salvage, the insurer shall require the vehicle owner to provide the title to the insurer.
-
-
To settle your total‑loss claim,
the insurance company
may offer you a cash settlement.
Or they may offer you a replacement vehicle
that is substantially similar
to your total‑loss vehicle.
In a cash settlement,
New York State law views
the insurance company’s valuation
of your total‑loss vehicle as an offer.
That is, the insurance company’s valuation
is an initial offer in a negotiation
between you and the insurance company.
The insurance company’s offer
is in no way authoritative.
The insurance company’s offer
is in no way binding on you.
-
(c) Adjustment of total losses.
-
(1) If the insurer elects to make a cash settlement, its minimum offer,subject to applicable deductions, must be one of the following:
-
The law describes
several procedures and sources
that an insurance company may use
to come up with its initial cash offer.
The first procedure described
includes N.A.D.A. as a valuation source.
N.A.D.A. is now J.D. Power.
Unethical insurance companies
do not use J.D. Power
as a valuation source
because J.D. Power’s valuations are fair.
Using a fair valuation would increase
the insurance company’s
claim‑settlement expense and, thereby,
reduce the insurance company’s profits.
-
-
-
(i) The average of the retail values for a substantially similar vehicle as listed in two valuation manuals current at the date of loss and approved by this department. Manuals approved for use are--The Redbook, published by National Market Reports Inc., and The N.A.D.A. Official Used Car Guide, published by the National Automobile Dealers Used Car Guide Company. The use of other manuals may be approved by this department upon demonstration of need and suitability. If it is evident that an option has not been considered in either or both of the above valuation manuals, the insurer shall consider the value, if any, of such option in arriving at the vehicle’s value and shall utilize the best available method to value such option. The insurer may deduct documented, reasonable dealer preparation charges, up to $100, from the average of the retail values. The insurer shall provide to the insured, no later than the date of payment of the claim, a detailed copy of its calculation of the insured vehicle’s total loss value, including the valuation of options which are not considered in the base price of the vehicle.
-
-
The second valuation source
that the law permits is a price quotation
from a local automobile dealership
for a vehicle that is substantially similar
to your total‑loss vehicle.
-
-
-
(ii) A quotation for a substantially similar vehicle, obtained by the insurer from a qualified dealer located reasonably convenient to the insured. A reasonable location shall be within 25 miles of the place of principal garagement of the motor vehicle. The substantially similar available vehicle must remain available for purchase by the insured for a period of three calendar days subsequent to receipt of notice of its availability by the insured, and the insured must be able to purchase the substantially similar vehicle at the quoted dealer for the insurer’s cash offer plus applicable deductions. The insurer must maintain in its claim file the dealer’s name and location, the vehicle identification number, the dealer stock number, the mileage and the major options for the substantially similar vehicle which was the basis of its quote. The notice to the insured of the availability of a substantially similar vehicle must be sent by certified mail, return receipt requested, or be a sound-recorded conversation reflecting the date of notice. The three calendar days commence on the date the insured acknowledges receipt of notice.
-
-
Unethical insurance companies
do not use price quotations
for substantially similar vehicles
from local automobile dealerships
because such a valuation would be fair.
Using a fair valuation would increase
the insurance company’s
claim‑settlement expense and, thereby,
reduce the insurance company’s profits.
Instead, unethical insurance companies
and their valuation‑services vendors
may start with what they purport to be
list prices of somewhat similar vehicles
allegedly currently or recently
for sale at local automobile dealerships.
Then they make “adjustments”
to those purported list prices.
The Market Valuation Report
that CCC Information Services
a.k.a. CCC Intelligent Solutions
concocted for Maria’s Mazda3
included twelve “comp” vehicles.
None of these twelve vehicles
met New Jersey’s legal criteria
for a substantially similar vehicle.
From the purported list price
of each of these twelve somewhat similar
“comp” vehicles, CCC deducted
an average of $3,475.
If an insurance company
or a valuation‑services vendor
used the list prices
of substantially similar vehicles
for sale at local automobile dealerships,
then there would be no need or reason
to make “adjustments.”
Keep in mind that the vehicles
that an insurance company
or valuation‑services vendor
tells you are for sale
at a local automobile dealership
may not actually be for sale there.
The Market Valuation Report
that CCC Information Services
a.k.a. CCC Intelligent Solutions
concocted for my Jeep Cherokee
based its valuation
on the alleged for‑sale prices
of two comp vehicles allegedly for sale
at two local automobile dealerships.
The dealerships neither had
nor had they ever had
those two vehicles for sale.
If a dealership has the allegedly
substantially similar vehicles for sale,
they may not be for sale
for the low price
that the insurance company
or valuation‑services vendor
says they are.
They may not have the options
that the insurance company
or valuation‑services vendor
says they have.
They may not be in the condition
that the insurance company
or valuation‑services vendor
says they are.
Some websites list used automobiles
allegedly for sale at low prices.
Then, when buyers try to buy
those vehicles at those low prices,
they discover that those vehicles
are not for sale at the advertised prices.
The low prices are just click bait
to pull in people
who are shopping for vehicles.
An unethical valuation‑services vendor
may use
these phony listings and phony prices
as sources for valuing
your total‑loss vehicle.
Depending on how much time and effort
you want to put into getting
a good valuation of your total-loss vehicle,
you may wish to research the retail prices
of substantially similar vehicles
for sale at automobile dealerships.
Depending on how the retail prices
that you find at dealerships
compare with the J.D. Power
Buy from Dealer price,
you may want to propose
to the insurance company
that, as the initial valuation
of your total‑loss vehicle,
the insurance company use
the J.D. Power Buy from Dealer price;
or you may want to propose
that they use the average retail price
of two or more substantially similar vehicles
that you have found;
or you may want to propose
that they use the retail price
of one similar vehicle
that you have found;
or you may want to propose
that they use the average
of some combination of these prices.
You will want to propose
whichever of these valuation sources
is likely to get you the most money
in the end.
New York State law says
that you are under no obligation
to purchase any vehicle
that the insurance company uses
as a comp vehicle for valuation purposes.
-
-
-
[ (ii) continued.] The insured need not purchase the vehicle used as the basis of the insurer’s quotation, since the quotation merely serves as a basis for the insurer’s offer.
-
-
New York State law emphasizes
that the insurance company
should offer you a valuation
adequate to purchase a substantially similar vehicle.
-
-
-
[ (ii) continued.] Should the insurer’s research of substantially similar vehicles determine that the retail values contained in the valuation manuals, prescribed in subparagraph (i) of this paragraph, are inadequate to purchase a substantially similar vehicle, the insurer’s offer should be the amount determined by such research.
-
-
Subparagraph (iii) appears to be where
automobile insurance company lobbyists,
lobbyists for valuation‑services vendors,
or state legislators
beholden to or friendly to
automobile insurance companies
slipped into the law
permission
for automobile insurance companies
to use valuations from sources
that may have financial incentives
to concoct unfairly low valuations.
-
-
-
(iii) A quotation obtained from a computerized database, approved by the superintendent, that produces statistically valid fair market values for a substantially similar vehicle, within the local market area that meets all the following minimum criteria:
-
(a) it shall produce values for at least 85 percent of all makes and models of private passenger automobiles, as defined in section 67.1(a) of this Title, for the last 15 model years, and shall take into account the values of all major options for such vehicles:
-
(b) it shall rely upon values derived from licensed dealers, which have minimum sales of 100 motor vehicles per year in the local market area for all vehicles of seven model years or less of age, and be based upon the physical inventory of vehicles sold within the 90 days prior to the loss and vehicles which are available; and
-
(c) it shall monitor the average retail price of private passenger automobiles when there is insufficient data or inventory available from licensed dealers to ensure statistically valid local market area values.
-
-
-
New York State law acknowledges
that the valuation methods
thus far prescribed may not work
for a given claim settlement.
Accordingly, in such instances,
the law allows the insurer
to determine the retail value
by using the best available method.
It logically follows that,
if you cannot determine a fair valuation
by using the valuation methods
thus far prescribed,
then you should use
the best available method
to determine a fair valuation.
-
-
-
(v) If it is not possible to value the damaged motor vehicle by using an alternative method as described in subparagraph (i), (ii), (iii), or (iv) of this paragraph, the insurer shall determine the retail value by the best available method and shall explain to the insured how its offer was calculated.
-
-
New York State law does not require
the insurance company
to offer you a cash settlement.
Instead, they can offer you
a substantially similar vehicle
that they have acquired.
-
-
(2) If the insurer elects to replace the vehicle, the replacement vehicle must be an immediately available, substantially similar vehicle that is both furnished and paid for by the insurer, subject to the deductible if any.
-
If your total‑loss vehicle is a new vehicle,
New York State law
requires the insurance company
to value your vehicle at the price
of a substantially similar new vehicle
minus the per‑mile depreciation
of your vehicle.
For such a valuation,
the law provides a depreciation schedule.
-
-
(3) A private passenger automobile of the current model year means a current model year automobile that has not been superseded in the marketplace by an officially introduced succeeding model, or an automobile of the previous model year purchased new within 90 days prior to the date of loss. If the insured vehicle is a private passenger automobile of the current model year, the insurer shall pay to the insured the reasonable purchase price to the insured on the date of loss of a new identical vehicle, less any applicable deductible and an allowance for depreciation in accordance with the schedule below, except where the utilization of this method of settlement would result in a lower claim payment as compared with the utilization of the methods described in subparagraphs (1)(i), (ii) and (iii) of this subdivision.
DEPRECIATION SCHEDULE
Purchase price
Depreciation per mile
Up to $10,000
$.15
$10,001 to $15,000
.20
$15,001 to $20,000
.25
$20,001 to $25,000
.30
$25,001 to $30,000
.37
$30,001 to $35,000
.45
More than $35,000
.53
-
New York State law gives you
a right of recourse.
Under your right of recourse,
if, after the insurance company
sends you a claim payment,
you cannot find
for sale at a local automobile dealership
a substantially similar vehicle
that you can buy
for the amount of money
at which the insurance company
valued your total‑loss vehicle,
then you can demand
that the insurance company
do one of two things:
-
Give you enough additional money
to bring the valuation
up to an amount of money
that is sufficient
to buy a substantially similar
(or better) vehicle
that they have found for sale
at a local automobile dealership.or
-
Give you enough additional money
to bring the valuation
up to an amount of money
that is sufficient
to buy a substantially similar
(or better) vehicle
that you have found for sale
at an automobile dealership.
To exercise your right of recourse,
you simply inform
the insurance company
in writing,
“I hereby exercise
my right of recourse.”
Counting from the day
that the insurance company mails
a claim‑settlement check to you,
you have 35 calendar days
in which to exercise your right of recourse.
If you fail to exercise
your right of recourse
during this time window,
then you lose your right of recourse.
Keep in mind that the clock
does not start running on the day
that you receive the check.
The clock starts running on the day
that the insurance company mails the check.
When you exercise your right of recourse,
the law requires the insurance company
to reopen your claim file.
(Most people say, “reopen your claim.”)
-
-
(4) Right of recourse. If, within 35 calendar days after mailing of the claim payment, the insured notifies the insurer in writing that the insured cannot purchase a comparable vehicle for the market value, as determined under the provisions of subparagraph (1)(i), (ii), (iii) or (v) or paragraph (3) of this subdivision, the insurer shall reopen its claim file and shall offer, in its discretion and subject to applicable deductions, one of the following options to the insured:
-
(i) the insurer shall identify and offer for settlement an amount sufficient to purchase a substantially similar vehicle, as provided in subparagraph (1)(ii) of this subdivision; or
-
(ii) the insurer shall pay the insured the difference between the amount of its claim payment and the cost of a substantially similar vehicle, as provided in subparagraph (1)(ii) of this subdivision, located by the insured, or the insurer, upon consent of the insured, may purchase that vehicle for the insured.
-
-
In an attempt to preclude
your exercise of your right of recourse,
when the insurance company
makes its final valuation offer,
it may identify
an allegedly substantially similar vehicle
that is allegedly for sale
at a local automobile dealership
that allegedly you can buy
for the amount of money
at which the insurance company valued your vehicle.
Anything the insurance company alleges,
you would do well to investigate and verify.
If the allegedly substantially similar vehicle
is not substantially similar in any respect,
or was not available for the price alleged,
or was not available where alleged,
or did not remain available
for at least three days
after the insurance company
offered it to you;
then the insurance company
fails to preclude your exercise
of your right of recourse.
Throughout your fight
for a fair valuation
of your total‑loss vehicle,
be mentally prepared for bogus attempts
to preclude your exercise
of your right of recourse
with vehicles
that are not substantially similar
to your total‑loss vehicle.
Be mentally prepared for bogus attempts
to satisfy your exercise
of your right of recourse with vehicles
that are not substantially similar
to your total‑loss vehicle.
Be prepared to preserve,
protect, exercise, and defend
your right of recourse.
-
-
(5) The insurer shall not be required to take action under paragraph (4) of this subdivision if its documentation to the insured at the time of its final offer included written notification of the availability of a substantially similar vehicle, as provided in subparagraph (1)(ii) of this subdivision, which shall have been available for at least three calendar days subsequent to the insured’s receipt of that offer. The documentation shall include the vehicle identification number, the stock number or order number.
-
New York State regulatory laws
take into account both likely scenarios
and less likely scenarios.
As an example of a less likely scenario,
here is what the law says
about the deduction
of a vehicle’s salvage value
from the claim‑settlement amount
if the claimant chooses
to keep a totaled vehicle.
In general, I do not address less likely scenarios.
If you run into a situation
that I do not address,
you may wish
to read more of the regulations
that govern the settlement
of automobile insurance claims.
You may find a regulation that addresses
your out‑of‑the‑ordinary situation.
-
-
(6) If the insurer in the process of adjusting a total loss makes a deduction for the salvage value of the insured vehicle, the insurer must furnish the insured, upon the insured’s request, with the name and address of a licensed or certified salvage dealer or dismantler who will purchase the salvage for the amount deducted with no additional charges to the insured by the salvage dealer or dismantler.
-
New York State law introduces
some of its regulations
in the context of “partial losses.”
A partial loss
is damage to a vehicle
that can be repaired
for less than 75%
of what it would cost
to replace the vehicle
with a substantially similar vehicle.
The law then says that
almost all those partial‑loss regulations
also apply to total losses.
-
-
(7) All applicable provisions of subdivision (b) of this section (“adjustment of partial losses”) also shall apply to the adjustment of total losses, except that the insurer shall be allowed an additional five business days to comply with the requirements of paragraph (1) of subdivision (b) of this section.
-
If you are dealing
with your own insurance company,
your insurance policy may entitle you
to compensation for loss of use
of your totaled or stolen vehicle
while your claim is open.
To find out, read your policy.
If you are dealing
with the insurance company
of an at‑fault driver
whose negligent act
caused the destruction of your vehicle,
then you are entitled to compensation
for loss of use of your vehicle
while your claim is open.
Ordinarily, to compensate claimants
for loss of use of their vehicles,
insurance companies provide a claimant
with a rental vehicle
at the insurance company’s expense.
-
(f) Loss of use. In the event of the theft of the entire vehicle, it shall be the duty of the insurer at the time of notification of loss to advise the insured of his right under the policy to be reimbursed for transportation expenses. Such notification must be confirmed in writing immediately after receipt of notice of theft. All conditions and benefits related to this coverage as stated in the policy must be contained in the notification to the insured.
Citation:
N.Y. Comp. Codes R. & Regs. Tit. 11 § 216.7
Verify statute or Download PDF
If verify link fails, Google:
casetext.com, the citation.
The above regulations are written
to apply to the settlement
of first‑party claims.
Almost all of them also apply
to the settlement
of third‑party claims.
(A third‑party claim arises
when another driver
is fully or partially responsible
for the total loss of your vehicle.)
Section 216.10 specifies
which of the above regulations
apply to third‑party total‑loss claims.
Section 216.10 then adds
to those regulations.
Notice in passing
that Section 216.10 refers to
“motor vehicle
liability insurance contracts.”
What is a “motor vehicle
liability insurance contract?”
That is the liability coverage
in someone’s automobile insurance policy.
An insurance policy is a contract
between the policy holder
and the insurance company.
Section 216.10 -
Standards for prompt, fair and equitable settlement of third-party property damage claims arising under motor vehicle liability insurance contracts
This section is applicable to claims arising under motor vehicle liability insurance contracts affording coverage for claims of property damage by third parties caused by the alleged negligence of the insured. The following provisions of this Part shall also be applicable to these claims: sections
216.0(a), (b), (d), (e);
216.1;
216.2(preamble);
216.3;
216.4(b), (c), (d), (e);
216.5;
216.6(a), (b), (e), (f), (g);
216.7(a), (b)(4), (5), (6), (11), (12), (13);
(c)(1), (3), (4);
and 216.11.
In a third‑party claim,
in addition to being entitled
to compensation for loss of your vehicle,
you also are entitled to compensation
for loss of use of your vehicle.
Ordinarily, to compensate claimants
for loss of use of their vehicles,
insurance companies provide a claimant
with a rental vehicle
at the insurance company’s expense
for however long the claim remains open.
You also are entitled to reimbursement
of out‑of‑pocket expenses
that you incurred
because of the destruction of your vehicle.
Your reimbursable out‑of‑pocket expenses
may include these and other expenses:
the cost of protecting your crashed vehicle
from additional damage,
car fare home from the accident,
towing charges,
and vehicle‑storage charges.
Section 216.10
-
(a)
-
(3)
-
(i) In all other claims, the written acknowledgment by the insurer shall inform the claimant that the insured has a policy which, to the extent of the insured’s negligence, provides coverage for property damage, including the loss of use of damaged property and any other out-of-pocket expenses reasonably attributable to the accident.The acknowledgment shall also state that in no event will the recovery against the insurer exceed the maximum amount of the policy. The acknowledgment shall contain an explanation of the comparative negligence rules in New York, to the effect that, should the insurer’s investigation determine that its insured is only partially liable, coverage of the property damage, loss of use and other expenses will only be partially reimbursed in accordance with the percentage that the insured is found to be at fault in the accident.
-
-
Section 216.10(a)(3)(i) says that,
if your claim is a third‑party claim,
then you are entitled
to compensation for loss of use
of your totaled vehicle
for however long your claim file is open.
When you receive
the initial settlement check
from the insurance company,
the insurance company
closes your claim file.
If you exercise your right of recourse,
your exercise requires
the automobile insurance company
to reopen your claim file.
I read this requirement to mean that,
if you exercise your right of recourse,
your exercise
requires the insurance company
to once again
provide you with a rental vehicle
at their expense
and to continue
to provide you with that rental vehicle
at their expense
until they have satisfied
the other requirements
of your exercise of your right of recourse
and your claim file is once again closed.
If you exercise your right of recourse,
then, when you do,
you may want to demand
of the insurance company
that they provide you
with a rental vehicle at their expense
and continue to do so
until they have satisfied
the other requirements
of your exercise of your right of recourse.
If the insurance company
fails to provide you
with a rental vehicle at their expense
and they fail to satisfy
the other requirements
of your exercise of your right of recourse,
then, as I see it,
your claim file never gets closed.
Your claim stays open.
If, after you exercise your right of recourse,
you lease a vehicle
and you wait, say, twenty months
before you sue the insurance company
for their failure to meet
the requirements
of your exercise of your right of recourse,
then you may want to include
in your claims
against the insurance company
a claim for however much money
your leased vehicle cost you
for those twenty months
that your claim file remained reopened
before you sued.
On average, leasing a vehicle
costs around $500 per month.
If you sue the insurance company and,
as one of your claims,
you ask for compensation
for loss of use of your vehicle
and twenty months elapsed
between the day
that you exerised your right of recourse
and the day
that you filed your lawsuit,
then your claim for loss of use
of your vehicle during that time
will be for around $10,000.
Will you win on this claim?
I do not know.
But you might.
If you’re going to sue anyway,
you might as well include this claim
in your lawsuit with your other claims.
In a court that handles small claims,
you can sue
for however much money you want
regardless of the limit
on the court’s award limit.
But, at most, you’ll receive
the court’s maximum award amount.
Be sure to include
your lease agreement and receipt
in your evidence.
The regulations specify that,
to settle a third‑party claim,
the insurance company
is to value the total‑loss vehicle
the same way as in a first‑party claim.
-
(e) Within 10 business days of the completion of its investigation of a property damage claim, the insurer shall:
-
(1) make a written offer which is first computed in the same manner as would be used if the claim were made under a first-party coverage by one of its insureds, and, if applicable, modified to give effect to the comparative negligence statute of this State, or any other state subject to policy limits. Any offer based on comparative negligence shall contain a factual and complete explanation of the insurer’s basis for apportioning culpability. If the claim presented is greater than policy limits, then the claimant must be so advised; or
-
(2) deny the claim in writing, giving specific reasons therefor.
-
The regulations allow
that a claim may remain open
for 60 calendar days or longer.
Do not let the insurance company
rush you
to complete your own valuation
of your total‑loss vehicle.
Do not let the insurance company
rush you
to complete your investigation
of their valuation of your total‑loss vehicle.
-
(f) If the investigation is not complete 60 calendar days subsequent to the claimant’s notice of loss, the insurer shall send a written explanation of the specific reasons for the delay in claim settlement.An updated letter shall be sent every 60 calendar days thereafter, but the insurer must within six months of the notice of loss advise the claimant of its decision pursuant to paragraph (e)(1) or (2) of this section. This requirement shall cease to be applicable after a claim has been placed into litigation or the insurer advises the claimant of its decision.
Citation:
N.Y. Comp. Codes R. & Regs. Tit. 11 § 216.10
Verify statute or Download PDF
If verify link fails, Google:
casetext.com, the citation.
And there you have it:
My excerpts and comments upon
the New York laws that I think
you will find most useful
in your quest for justice
and for a fair valuation
of your total‑loss vehicle.
“Jerry, looks to me like
the legislators of some states
are pimping us out
to automobile insurance companies.”
“Jerry, I skimmed through the laws
of half a dozen or so different states.
“Looks to me like the legislators
of some states aren’t just making it easy
for automobile insurance companies
to have their way with us.
“Looks to me like they’re pimping us out
to the automobile insurance companies.”
If that’s the conclusion that you come to,
my friend, I cannot necessarily say
that I would disagree with you.
“Our state legislators are pimping out
to automobile insurance companies
the very voters
who voted those legislators
into office?
“How can that be?”
In a word, money!
Every year, in the USA,
automobile insurance companies
collect hundreds of billions of dollars
in automobile insurance premiums.
Money of that magnitude
translates into political power.
Automobile insurance companies
have many ways
in which they can reward
whoever helps them maximize their profits.
Then too, there’s a revolving door
between insurance companies
and state regulatory departments.
Some employees of insurance companies
go on to become
state commissioners of insurance.
Some state commissioners of insurance
go on to become highly-paid employees
of insurance companies
or go on to become
fabulously compensated lobbyists
for insurance companies.
One way for a man or woman
to maximize his or her career income
in the insurance industry
is to help insurance companies
maximize their profits
before he or she becomes
a state commissioner of insurance
and to help insurance companies
maximize their profits
after he or she becomes
a state commissioner of insurance.
“Is there anything we can do?”
In principle, yes.
The Affordable Care Act
limits the percentage
of health-insurance premium dollars
that health insurance companies
can keep for themselves
and their shareholders.
But I have yet to run across a law
that limits the percentage
of automobile insurance premium dollars
that automobile insurance companies
can keep for themselves
and their shareholders.
I’d like to see
our state legislators enact such laws
or our federal legislators enact such a law.
“Until that happens,
we’re goinng to keep getting pimped out
to the automobile insurance companies?”
You read your state’s laws.
You’ve witnessed up close the conduct
of the automobile insurance company
that you’re dealing with
under your state’s laws.
I’ll leave it to you
to reach your own conclusions.
I’m doing what I can to teach folks
how to fight back against rapacious
automobile insurance companies.
From my questions
about your state’s laws,
you learned that the legislators
of some states
give total-loss claimants
rights that legislators
of other states take away.
I would like to see
the legislators of states
that have taken away rights
restore those rights.
I would like to see state legislators
give total-loss claimants
rights that would make it easy
for total-loss claimants
to get fair valuations
of their total-loss vehicles.
I’d like to build an organization
that can try to persuade our legislators
to change some of the laws
that make it so easy
for automobile insurance companies
to have their way with you.
If you would like to help me,
then, at the top right of your screen,
click this image:
Send me a few dollars.
Looks_to_me_like_legisators_of_some_states_are_pimping_us_outChapter
Get your draft document into shape
for an attorney to review it.
When I imagine you meeting with an attorney,
I see your attorney sitting at a computer.
The attorney has your draft letter
up on a computer screen
that you can see.
If someone other than you
did your word processing,
he or she is with you.
The two or three of you also have printouts
of your draft letter and other documents.
The attorney reads through your draft letter.
The attorney comments on
what is good in your draft letter
and on what needs to be fixed,
improved, deleted, or changed.
She or he asks you questions.
To answer some of the questions,
you pull out the document or the page
wherein the answer to that question
is to be found.
At the computer keyboard,
the attorney edits, fixes,
and strengthens your draft letter.
If you will imagine your meeting
with the attorney,
then doing so may help you
shape up and organize your draft letter
and other documents for that meeting.
When you are deciding
what to delete and what to keep,
imagine the workflow
that you want to accomplish
in the hour or so that you will spend
with the attorney.
Imagine how your conversation
with the attorney is likely to flow.
Shape up your draft letter accordingly.
Doing so may mean little more
than putting hard page breaks in places
that will organize the document
into meaningful sections.
Preserve the section of your draft document
where you used
“Find and replace” ➞ “Replace all”
to replace the specifics
of my fictitious total-loss claim
with the specifics of your total-loss claim.
This list of specifics
will give your attorney
the specifics of your total-loss claim
all in one place.
If some of what is in your draft letter
will have no role in the finished document
or in your conversation with the attorney,
then, probably, you can safely delete it.
Keep in mind that you’re not trying to create
a perfectly polished, legally pristine letter.
You’re putting together information
and supporting documents
that an attorney can vet, edit, and shape
into a powerful package.
You’re preparing yourself
for a fast-paced, efficient,
and productive conversation
with an attorney
about how to craft a letter
that will get you a fair valuation
for your total-loss vehicle.
When you’ve developed
your draft letter
as far as you wish to,
find an attorney
who knows how to deal
with automobile insurance companies
on total-loss property damage claims.
Get_your_draft_document_into_shapeChapter
Find an attorney
who is knowledgeable
about automobile insurance
total-loss property damage claims.
See if an attorney in your county
advertises his or her expertise
here
on wasyourcartotaledorstolen.com.
Attorneys have many different specializations.
To help you get a fair valuation
of your total-loss vehicle,
you likely will want to find an attorney
who is knowledgeable
about automobile insurance
total-loss property damage claims.
If an attorney in your county
or in a nearby county
advertises his or her expertise
on wasyourcartotaledorstolen.com,
then he or she is likely knowledgeable
about automobile insurance
total-loss property damage claims.
He or she is likely
primed and prepared
to have with you
the kind of conversation
that I’ve prepared you for.
He or she may even
have already created a model letter
that picks up where mine leaves off.
If a local attorney
has already created
a model letter that picks up
where mine leaves off,
then his or her letter
will already be tailored
to the laws of your state.
To see if an attorney in your county
advertises his or services
here at wasyourcartotaledorstolen.com,
at the top of your screen,
click the image
of four attorneys standing together.
Then click your county.
Find_a_knowledgeable_attorneyChapter
Make an appointment with the attorney.
Email your draft letter
and supporting documents
to the attorney.
However you find an attorney
who is well qualified
to help you get a fair valuation
of your total-loss vehicle,
make an appointment
for an hour of his or her time.
If you want the attorney
to have your draft letter
up on a computer screen
during your meeting,
then email your draft letter
and its supporting documents
to the attorney
before your meeting.
If you are going to email your draft letter
and its supporting documents
to the attorney, then you need to write
an email for that purpose.
At the end of your draft document,
I have included as an example
the email that I would write
for that purpose.
If you wish to do so,
you may use my example email
as the starting point for your email.
If, earlier, you used
“Find and replace” ➞ “Replace all”
to change the specifics
of my fictitious total-loss claim
to the specifics
of your total-loss claim,
then those changes
will have rippled through
to my example email.
Make_an_appointment_with_an_attorneyChapter
Meet with the attorney.
Meet with the attorney.
If you have a co-pilot,
take him or her with you.
Ask your attorney to:
-
Review your draft letter
against the CCC market valuation report
or other market valuation report
that you received
from the automobile insurance company; -
Review your draft letter against
the J.D. Power Buy from Dealer price
for your total-loss vehicle; -
Review your draft letter against
your state’s laws; and -
If your total-loss claim
is a first-party claim,
review your draft letter against
your automobile insurance policy.
Ask your attorney, to edit, tweak,
and strengthen your draft letter
as he or she thinks best.
Or, if your attorney wants you
to make the changes to your draft letter,
take good notes of what
your attorney tells you to change.
If you have time enough to do so,
ask the attorney what steps
he or she thinks you should take
if the automobile insurance company
does not agree to the valuation amount
that you propose.
If you don’t accomplish everything
that you wish to in one hour,
make a follow-up appointment.
Do not let
the automobile insurance company
rush you into a settlement
that is not fair to you.
Meet_with_the_attorneyChapter
Email your letter
and its supporting documents
to the automobile insurance company.
If your attorney asked you and your co-pilot
to make the changes to your draft letter,
then make those changes.
Pretty your letter up.
When you’re satisfied with
how your letter looks and reads,
email your letter
and its supporting documents
to the automobile insurance company
that you’re dealing with.
Email_your_letter_and_documents_to_the_automobile_insurance_companyChapter
If your letter and supporting documents
get you a fair valuation
of your total-loss vehicle,
then great!
Congratulations!
High fives!
You rule!
If you’ve made in this far
into wasyourcartotaledorstolen.com,
then you’ve done a lot of work!
You and perhaps a co-pilot
have spent a lot of hours
getting savvy to ways
in which automobile insurance companies
try to cheat people
out of fair settlemets
of their total-loss claims.
If you have succeeded
in getting a fair valuation
of your total-loss vehilce,
then, as we say down South,
I’m proud fer ya!
Your hard work has paid off!
High fives!
God bless you!
If you would like to share
your success story
with other total-loss claimants
in New York, email me your story.
I’ll create a web page
here in the New York arena
of wasyourcartotaledorstolen.com
where you and other folks
who live in New York
can share your stories
with one another.
(I may edit your story a little bit
to keep you and me
from getting into trouble.)
If you would like to help me
help others achieve
what you have achieved,
then, at the top right of your screen,
click this image:
Send me a few dollars.
Congratulations!
And thank you!
If_your_letter_gets_you_a_fair_valuation_high_fivesChapter
If your letter did not get you
a fair valuation
of your total-loss vehicle, then,
if you have a right of recourse,
exercise your right of recourse.
By now, you should know
whether or not your state laws
give you a right of recourse.
You should know how many days
after the automobile insurance company
mails you the settlement check
you have to exercise
your right of recourse
before it expires.
To learn how I would go about
exercising my right of recourse,
at the top of your screen,
click the photo
of the young woman
who is determined
to exercise her rights:
If_your_letter_did_not_get_you_a_fair_valuation_exercise_your_right_of_recourseChapter
If you do not have a right of recourse
or if exercising your right of recourse
did not get you a fair valuation
of your total-loss vehicle,
then you may want to initiate
a small-claims lawsuit
or even a large-claims lawsuit.
To get a fair valuation
of my total-loss vehicle,
I sued the at-fault driver
in a small-claims lawsuit
for the amount of money
that her automobile insurance company,
Travelers, cheated me out of.
I got an additional $5,920 from Travelers.
If your total-loss claim
is a third-party claim
and the automobile insurance company
refused to negotiate
a fair valuation of your total-loss vehicle,
then you can sue the at-fault driver
for the amount of money
that his or her
automobile insurance company
cheated you out of.
If your total-loss claim
is a first-party claim,
then things are much more complicated.
Your automobile insurance policy
may contain an appraisal clause,
may contain an arbitration clause,
or may contain both.
Your state’s legislators
may have taken away rights
that you would otherwise have
under the law of contracts.
Hence, if your total-loss claim
is a first-party claim,
then I suggest that you
ask an attorney in your county
whether or not it makes sense
for you to invoke the appraisal clause
in your automobile insurance policy,
invoke the arbitration clause
in your automobile insurance policy,
or initiate a lawsuit
against your automobile insurance company.
To learn how,
in a third-party total-loss claim,
I would initiate a small-claims lawsuit
and perhaps a large-claims lawsuit,
at the top of your screen,
click the photo of the total-loss claimant
and the attorney
for the automobile insurance company
arguing their case
in front of a judge.
If_your_right_of_recourse_does_not_get_you_a_fair_valuation_you_may_want_to_sueChapter
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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