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Greetings.
A couple of weeks ago, I was rear-ended by a driver while stopped in
traffic in beautiful Los Angeles, CA, USA. My car sustained some minor
damage to the rear bumper, and I have some minor injuries to my back
and neck.
I hired an attorney that I'd worked with in the past. I obtained an
estimate (~ $1,000) for replacing my bumper from a reputable body shop
recommended by my dealer. I have been receiving physical therapy and
other treatment for my back and neck injuries which, while relatively
minor, cause me ongoing pain and discomfort.
I received a letter from my attorney last week saying that the other
driver's insurance company is refusing to pay my personal injury claim,
because the accident was too minor. My attorney suggests that I pursue
a personal injury claim against the other driver in small claims court,
and says that I should negotiate with the other insurance company on my
own for a property damage settlement. He provided me with the name and
number of a company which "for a small fee" handles all the filing of
paperwork in small claims court.
I have since received an estimate (~$285) from the other driver's
insurance company for repairs to my car, and subsequently received a
check in the mail. At no time did I verbally or otherwise agree to this
amount, nor have I deposited the check.
The body shop told me that while they could repair my bumper with bondo
and paint, that this wouldn't really be returning the car to it's
pre-accident condition, and that I should hold out for a omplete
replacement. I'd also like to be compensated for the cost of renting a
car while mine is in the shop.
I have called the adjuster from the other driver's insurance company
and twice left messages for him, but they haven't returned my calls.
I have a few questions for the group:
1) What damages might I be entitled to pursue in a personal injury
claim against the other drive in small claims court?
2) How difficult will it be for me to prevail in that action?
3) If the insurance company continues to ignore my phone calls, what
recourse do I have with respect to the property damage settlement
amount?
I've been very impressed with the level of discourse while lurking in
this group over the years, and looking forward to answering any
questions that will help inform this discussion.
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mrechs wrote:
[was rear ended. Other's insurance is playing hardball]
1) What damages might I be entitled to pursue in a personal injury
claim against the other drive in small claims court?
Any you can prove with a preponderance of the evidence. Insurance
companies aren't, to some extent, playing 'gimme' any more on claims
including bodily injury. The reason here is that modern cars are
constructed such that minor rear enders don't result in injury usually.
Also what is right when it comes to repairs? You say that you want a
brand new bumper, but your old bumper wasn't new, was it? I mean, did
you just leave the showroom with that car? So there is logic that if you
got a 100% new bumper, you'd be unjustly enriched.
The devil here is in the details of your car's overall condition and age
at the time of the crash.
2) How difficult will it be for me to prevail in that action?
You'll need to convince the judge that to be made whole, you need the
new bumper and money to pay for your 'treatments'. If your treatments
are chiropractic or other quack stuff (I note you don't specify the
provider class), you will have a hard time in some courts. Other courts
are plaintiff friendly so give the store away easily.
3) If the insurance company continues to ignore my phone calls, what
recourse do I have with respect to the property damage settlement
amount?
If you hired an attorney and prevailed, you may get costs back too. That
is, the attorney's fees would be paid for by the insurance. Of course if
you lose, you just lose including the fees unless you make a deal with
an attorney for no cost to you unless you win.
Since the attorney you hired dropped you on to your head, I'd guess
either you don't have a good case to get what you want or it's too small
to interest a pro.
I've been very impressed with the level of discourse while lurking in
this group over the years, and looking forward to answering any
questions that will help inform this discussion.
Good luck here. I can understand that you are a bit outraged at maybe
being stuck with a bondo'd bumper and not getting paid off for your pain
/ suffering like you hear many other folks get, but the truth is that
getting hit in the rear end isn't the jackpot urban legend would have
you believe.
-paul
ianal
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The victim was rear ended and is receiving treatment for minor back
problems. Victim estimates property damages to be $1000 per a body shop,
the other driver's insurance company said $285 and sent a check and won't
settle the personal injury claims.
I have a few questions for the group:
1) What damages might I be entitled to pursue in a personal injury
claim against the other drive in small claims court?
From what I have read, California juries tend to award 2-3 times the amount
of the legitimate medical bills as pain & suffering on soft tissue injuries
with the subjective symptons you describe. It will probably be somewhat
less with a small claims judge.
2) How difficult will it be for me to prevail in that action?
Considering that you were rear-ended at a stop light, you shouldn't have a
problem winning the case. The trick part is the amount of damages that you
might be able to recover. You should get two more repair estimates and a
report from you doctor before proceeding to court on your claims. The
report should confirm that you injuries are related to the accident and
should described why the course and cost of treatment are reasonable and
necessary.
The Los Angeles Superior Court has a very good website devoted to small
claims procedures that you should review:
http://www.lasuperiorcourt.org/smallclaims/
3) If the insurance company continues to ignore my phone calls, what
recourse do I have with respect to the property damage settlement
amount?
Well, the depends entirely upon what restrictions, if any, they placed on
cashing the check. If they just sent you the check without any conditions,
you MIGHT be okay to cash it. Of course, you also take the risk that the
judge might view that as a settlement of the property damage claims. Check
for any release agreement that came with the check or any restrictive
language on the check itself or the cover letter than came with it. If you
have any doubts whatsover, just hold onto the check and let the small claims
judge decide the issue.
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A few notes on this:
1) My car was, in fact, brand new when hit and didn't have a single
scratch on it. It was less than 6 weeks off the dealer lot, at about
1200 miles on the odometer when hit. It's leased, but the sticker price
on the car is about $52,000.
2) I'm pursuing the treatment prescribed by my doctor, which is
physical therapy twice a week. The cost to me for this treatment is
approximately zero, since I am receiving all this treatment via my HMO.
3) The insurance company has now called back. In the voicemail the
adjuster left, he said that they are "accepting liability" for the
accident, and that they want to resolve the differences in our damage
estimates by having me take the estimate *they* provided to *my* body
shop, and they want to negotiate with that body shop over the cost of
the repairs.
4) My attorney dropped me when the other insurance company said they
weren't going to pay the personal injury part of my claim. I'm sure
it's because it's a relatively small claim.
My plan is to call the insurance adjuster back and try to negotiate a
settlement for both the property damage and personal injury part of
this that makes me feel good. I think that figure is something like
$1500. If I can get a check from them for that amount, great. If not,
I'm going to send them their check for $285 back and sue for both
property damage and personal injury in small claims court. Does that
sound smart to everybody?
Also, out of curiousity, what happends to the other driver in this
case? Does he have to go after his insurance company for the judgement
amount, assuming I win?
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mrechs wrote:
A few notes on this:
1) My car was, in fact, brand new when hit and didn't have a single
scratch on it. It was less than 6 weeks off the dealer lot, at about
1200 miles on the odometer when hit. It's leased, but the sticker price
on the car is about $52,000.
In that case, I think you have an excellent chance of recovering the
full amount but you may need to go to court to do so.
3) The insurance company has now called back. In the voicemail the
adjuster left, he said that they are "accepting liability" for the
accident, and that they want to resolve the differences in our damage
estimates by having me take the estimate *they* provided to *my* body
shop, and they want to negotiate with that body shop over the cost of
the repairs.
Sounds reasonable. You have the right to specify body shops and fix
methods up to the point where you'd be enriched (made over 100%) by the
process.
My plan is to call the insurance adjuster back and try to negotiate a
settlement for both the property damage and personal injury part of
this that makes me feel good. I think that figure is something like
$1500. If I can get a check from them for that amount, great. If not,
I'm going to send them their check for $285 back and sue for both
property damage and personal injury in small claims court. Does that
sound smart to everybody?
I think that's a fine plan. You may also wish to suggest binding
arbitration with the insurance company if you can't achieve concensus.
Also, out of curiousity, what happends to the other driver in this
case? Does he have to go after his insurance company for the judgement
amount, assuming I win?
It depends on his coverage. Nothing in your posts says there has been a
judgement. That stems from a court proceeding. BTW, if you need to file
suit, you do so against the driver AND the insurance company. The court
clinic at your local small claims court will clue you in if it gets that
far.
-paul
ianal
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On Wed, 29 Jun 2005 14:08:21 -0400, Paul Cassel
<pcasselplustwo@comcast.net> wrote:
BTW, if you need to file
suit, you do so against the driver AND the insurance company. The court
clinic at your local small claims court will clue you in if it gets that
far.
I'm not sure this is universally correct. The insurance company was not
the cupable party in the accident, and therefore isn't normally named in a
suit. When the driver is sued, his insurance company will defend him and
pay any awards per the terms of his policy.
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doubter <devnul@san.spamblocker.com> wrote:
Paul Cassel <pcasselplustwo@comcast.net> wrote:
I'm not sure this is universally correct. The insurance company
was not the cupable party in the accident, and therefore isn't
normally named in a suit. When the driver is sued, his
insurance company will defend him and pay any awards per the
terms of his policy.
Some states allow direct suit against a defendant's insurance
company, but I understand it's the minority position. At least in
California the rule is that a defendant's insurer has no duty at all
to a plaintiff until a judgment has been entered against the insured.
Stu
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"Paul Cassel" <pcasselplustwo@comcast.net> wrote in message > Also what is
right when it comes to repairs? You say that you want a
brand new bumper, but your old bumper wasn't new, was it? I mean, did
you just leave the showroom with that car? So there is logic that if you
got a 100% new bumper, you'd be unjustly enriched.
Not necessarily. If he took care of his car, It is quite possible that a
new part would not be a "betterment"
I own an antique car that was in an accident (rear ended) a few years ago.
The (other party's ) insurance adjuster came out and verified my 27 year
old car's pristine condition. I was reimbursed for a new rear bumper, with
no questions asked. I wish people would stop assuming that cars are trash
after 5 years of ownership.
-paul
ianal
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tom418 wrote:
Not necessarily. If he took care of his car, It is quite possible that a
new part would not be a "betterment"
I agree in theory, but the reality of proving this is very difficult. We
get a steady parade of people who have expensive custom cars, especially
those little Japanese coupes, who claim their cars are more valuable
than stockers. The insurance company denies and very rarely (I assume is
must happen but I"ve never seen it happen) the plaintiff proves such a
claim.
This is a standard problem with collector cars which is why all serious
collectors carry agreed value policies.
-paul
ianal
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[I was rear-ended. The other guy's insurance company offered a very
small settlement for the property damage, and refuses to settle my
personal injury claim. I saw a doctor and received physical therapy for
a few weeks. ]
If anybody's interested, I spoke to the insurance adjuster just now.
The best offer that he was willing to make was for me to take the car
to a body shop, and for him to negotiate with a body shop the nature
and method of the repairs made to my car. I told him that I wasn't
comfortable with having repairs made to the car only in a manner that
was negotiated by them.
He also ruled out any personal injury settlement. He said it was
"impossible" for me to have been injured since the damage to the car
was "incredibly minor". That sealed the deal for me - so we're off to
small claims court. The adjuster asked that I notify him when I do file
the suit, although he said I'm not under any obligation to do so.
So, it's off to small claims court for me. Can anybody advise me on
how to determine the amount of damages that I should seek? I'm planning
to get two more estimates for the repairs, but I have no idea what
damages I'm entitled to based on the personal injury. I had no
out-of-pocket costs for medical treatment because I was treated via my
HMO insurance.
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In article <qhtid1t35gk21ok2r2e4u7nl7sj937qma0@4ax.com>,
mrechs <mrechs@gmail.com> wrote:
[I was rear-ended. The other guy's insurance company offered a very
small settlement for the property damage, and refuses to settle my
personal injury claim. I saw a doctor and received physical therapy for
a few weeks. ]
If anybody's interested, I spoke to the insurance adjuster just now.
The best offer that he was willing to make was for me to take the car
to a body shop, and for him to negotiate with a body shop the nature
and method of the repairs made to my car. I told him that I wasn't
comfortable with having repairs made to the car only in a manner that
was negotiated by them.
He also ruled out any personal injury settlement. He said it was
"impossible" for me to have been injured since the damage to the car
was "incredibly minor". That sealed the deal for me - so we're off to
small claims court. The adjuster asked that I notify him when I do file
the suit, although he said I'm not under any obligation to do so.
So, it's off to small claims court for me. Can anybody advise me on
how to determine the amount of damages that I should seek? I'm planning
to get two more estimates for the repairs, but I have no idea what
damages I'm entitled to based on the personal injury. I had no
out-of-pocket costs for medical treatment because I was treated via my
HMO insurance.
In general, small-claims is limited to *acutal* damages. out-of-pocket
expenses, etc. No pain-and-suffering, no 'punitive' damages.
Check with the rules for *your* court to see what claims are and are *not*
allowed.
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On Sat, 16 Jul 2005 17:33:19 -0400, "mrechs" <mrechs@gmail.com>
wrote:
I was rear-ended. The other guy's insurance company offered a very
small settlement for the property damage, and refuses to settle my
personal injury claim. I saw a doctor and received physical therapy for
a few weeks.
[at-fault driver's insurance company playing hardball]
So, it's off to small claims court for me.
Welcome to the world of auto accidents, where injured parties have
ZERO chance of getting what their claim is worth without a lawyer.
Small claims would be a big mistake for you. If you had WEEKS of
physical therapy your injury claim is worth more than the
small-claims limit. Add your repairs to that, lost work and
lifestyle issues. It's even possible there may be a claim for bad
faith -- though lucrative, such claims are hard to establish.
The adjuster is, quite simply,lying when he claims you can't have
injury with minor property damage. It's a standard lie, intended to
intimidate people into not getting proper compensation -- and it's
working on you. (He's also selling you a bill of goods on the
repairs, though there you're showing a little backbone. You are
entitled to have your car restored to its pre-accident condition, or
to an equivalent amount of cash. The manner in which that's done is
subject to negotiation, but not the goal.)
Bottom line: get yourself a lawyer or you WILL be screwed by this
company. An attorney will get you much more, after her fee, than you
could get on your own.
--
If you e-mail me from a fake address, your fingers will drop off.
I am not a lawyer; this is not legal advice. When you read anything
legal on the net, always verify it on your own, in light of your
particular circumstances. You may also need to consult a lawyer.
Stan Brown, Oak Road Systems, Tompkins County, New York, USA
http://OakRoadSystems.com
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In article <qhtid1t35gk21ok2r2e4u7nl7sj937qma0@4ax.com>,
mrechs <mrechs@gmail.com> wrote:
[I was rear-ended. The other guy's insurance company offered a very
small settlement for the property damage, and refuses to settle my
personal injury claim. I saw a doctor and received physical therapy for
a few weeks. ]
He also ruled out any personal injury settlement. He said it was
"impossible" for me to have been injured since the damage to the car
was "incredibly minor". That sealed the deal for me - so we're off to
small claims court.
So, it's off to small claims court for me. Can anybody advise me on
how to determine the amount of damages that I should seek?
Ask a local attorney. That's probably also the only way you'll get a
reasonable settlement.
One might well get you a settlement that (your share of) exceeds the
small claims limit in your state.
I'm planning to get two more estimates for the repairs, but I have
no idea what damages I'm entitled to based on the personal injury. I
had no out-of-pocket costs for medical treatment because I was
treated via my HMO insurance.
Your HMO should be entitled to reimbursement from the other driver,
because his tort cost it money. You don't want to be on the hook for
that because you neglected to inform them of the issue.
Seth
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In article <qhtid1t35gk21ok2r2e4u7nl7sj937qma0@4ax.com>,
mrechs <mrechs@gmail.com> wrote:
[I was rear-ended. The other guy's insurance company offered a very
small settlement for the property damage, and refuses to settle my
personal injury claim. I saw a doctor and received physical therapy for
a few weeks. ]
He also ruled out any personal injury settlement. He said it was
"impossible" for me to have been injured since the damage to the car
was "incredibly minor". That sealed the deal for me - so we're off to
small claims court.
So, it's off to small claims court for me. Can anybody advise me on
how to determine the amount of damages that I should seek?
Ask a local attorney. That's probably also the only way you'll get a
reasonable settlement.
One might well get you a settlement that (your share of) exceeds the
small claims limit in your state.
I'm planning to get two more estimates for the repairs, but I have
no idea what damages I'm entitled to based on the personal injury. I
had no out-of-pocket costs for medical treatment because I was
treated via my HMO insurance.
Your HMO should be entitled to reimbursement from the other driver,
because his tort cost it money. You don't want to be on the hook for
that because you neglected to inform them of the issue.
Seth
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[I was rear-ended. The other guy's insurance company doesn't want to
accept any PI claim, and low-balled my property damage. I'm planning to
go to small claims.]
If you can find the messages earlier in this thread, you'll see that I
originally did hire an attorney. He dropped me after the adjuster told
him that they weren't going to pay any PI claim on the accident -- I
got a letter from my attorney recommending that I pursue the claim in
small claims court. I got the impression that my attorney felt that the
overall case was too small to make it worth his while.
For the record, I had about two weeks of physical therapy. I'm unsure
what I should do now.
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[I was rear-ended. The other guy's insurance company doesn't want to
accept any PI claim, and low-balled my property damage. I'm planning to
go to small claims.]
If you can find the messages earlier in this thread, you'll see that I
originally did hire an attorney. He dropped me after the adjuster told
him that they weren't going to pay any PI claim on the accident -- I
got a letter from my attorney recommending that I pursue the claim in
small claims court. I got the impression that my attorney felt that the
overall case was too small to make it worth his while.
For the record, I had about two weeks of physical therapy. I'm unsure
what I should do now.
Assuming that you have your own vehicle insurance, in-
cluding un(der)insured coverage, why didn't/don't you
just file on that coverage. Or, did I miss that explanation?
Your carrier will subrogate against the responsible carr-
ier, if warranted. But, you're whole. The accident is not
chargeable(allegedly), and the deductibles are nil/less.
Did you disclose the responsible carrier name earlier?
Thanks,
Gary
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[I was rear-ended. The other guy's insurance company doesn't want to
accept any PI claim, and low-balled my property damage. I'm planning to
go to small claims, at my attorney's suggestion - he dropped me when
the other insurance denied my PI claim.]
I suppose I could file against my own insurance company, but I just
don't believe that this won't somehow lead to higher premiums. I have
no tickets and no accidents and I like knowing my record is squeakly
clean when I call for insurance quotes.
No, I haven't posted the name of the other guy's insurance. If it's
relevant, I'd be happy to do so in email.
Since I posted, I've cooked up a damages figure that includes the
middle of the three estimates I received for the repairs, my
out-of-pocket medical costs ($10), $140 for a rental car for when the
car is in the shop, one day's salary for the vacation time I missed to
go to doctor's appointments, and $1000 for pain and suffering. I've
sent the guy a demand letter for that amount, as the small claims
courts require I do. I'm also going to send a copy of it to his
insurance company, so they have an opportunity to settle with me again
before I actually file.
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"Seth Breidbart" <
| > I'm planning to get two more estimates for the repairs, but I have
| >no idea what damages I'm entitled to based on the personal injury. I
| >had no out-of-pocket costs for medical treatment because I was
| >treated via my HMO insurance.
|| Your HMO should be entitled to reimbursement from the other driver,
| because his tort cost it money. You don't want to be on the hook for
| that because you neglected to inform them of the issue.
|Note on the HMO if you have to file suit to recover the HMO is going to ask
for their full about. Cut the deal so that they buy part of the cost of the
legal action that comes out of your part of the settlement.
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mrechs <mrechs@gmail.com> wrote:
: 3) The insurance company has now called back. In the voicemail the
: adjuster left, he said that they are "accepting liability" for the
: accident, and that they want to resolve the differences in our damage
: estimates by having me take the estimate *they* provided to *my* body
: shop, and they want to negotiate with that body shop over the cost of
: the repairs.
I am not a lawyer.
This is actually pretty routine, in my experience. They will
probably pay the whole thing, but the key is to have a body shop that you
trust. Take it to a body shop that specializes in QUALITY work that won't
settle for doing repairs less than perfect (which you want anyway.)
Obviously, don't take it to the body shop that the insurance company
recommends, but it didn't really sound like that recommended one anyway.
Earlier this year, I had hail damage done to my new car. The
adjuster seriously lowballed me on his estimate ($1500 or something like
that.) The repair ended up costing $8500, and insurance paid every penny.
The body shop does a "supplemental claim" and deals with the insurance
adjuster (who may not be the same adjuster that you are talking to.)
Body shops work with these adjusters every day, and negotiate these claims
many times a day, every day of the year (i.e. they are experts at it, and
it's in their best interest to get paid as much as possible.)
So, my advice to you would be to find the most reputable body shop
in town (forget about cost,) and have them deal with the insurance company
regarding full payment of the property damage claim. Every reputable body
shop that I talked to said that this was pretty much standard procedure
with insurance companies and not to worry about it -- they'd get the car
fixed perfectly with all factory parts/paint (if necessary) and they
would deal with the insurance company for payment of the difference
between the insurance company's estimate and their real estimate. The
insurance companies are actually betting that you won't have the work
done, and will just take the cash and forget about it. In order to
minimize their losses, they pay less in cash then the repair is worth, but
when the repairs are actually done they will pay the full amount to the
body shop.
Your personal injury claim is an entirely different matter, and
you should definitely immediately see a lawyer about that.
But, my point is that you can probably get your property damage
claim resolved and your car repaired without going to court. Most
insurance companies WILL pay the full amount of the damage, but you just
have to be persistent.
Good Luck,
Joe
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