Dumba** Seeking Leagle Advice

[Dudewado]

While driving her '99 Dakota, my daughter was hit by a truck on her front left fender/wheel. She had to chase him down and get him to pull

over: "I didn't know I hit you."

His insurance, same Co. as mine, is not disputing and has estimated about $700 damage, plus car rental.

The kicker is, later that day something broke while she was driving, and she went off the road and into a tree with the right front of the truck.

Luckily she wasn't hurt, but the truck is surely totaled.

This damage hasn't been estimated, but, as I said I'm sure it will be totaled.

The claims adjuster (representing the other guy) says this damage is her fault for driving the truck.

Since she didn't have collision coverage she would have to eat the difference in Blue Book (about $4800), and the $700 they will pay.

I won't go into all of the fun I've had since October 20th trying to get this sorted, but I've waited while the other guy ignored phone calls for a week and a half to avoid giving his statement; been bounced around the insurance company's automated phone system in two states, and

I'm still trying to get them to get the truck to a body shop, so a real estimate can be done and see if what broke can be figured out.

I supposedly have an adjuster representing me, but he was just assigned yesterday and so far hasn't returned my calls.

Does anyone know if they should be liable for the second wreck?

I can see it from both sides; I think she should have had the truck checked, but if she hadn't been hit the first time, the second wreck wouldn't have happened.

I know most people will form an opinion either way, but I don't know if I have a reasonable case here.

I may have a better idea after talking to my adjuster, but he works for the same company so I doubt he will go to bat for me.

 

[exskibum]

Does anyone know if they should be liable for the second wreck?I can see it from both sides; I think she should have had the truck checked, but if she hadn't been hit the first time, the second wreck wouldn't have happened.

It depends on the evidence.

First, it must be established, most likely by an expert, that the part that broke did so as a result of the earlier accident, and that it was a principle cause of the second accident. Without that, you get nowhere.

Second, probably by your daughter's testimony, and the testimony of anyone else who looked at the truck and that expert I mentioned, you have to establish that your daughter did not know and had no reason to suspect that the part that broke was damaged or in any way more likely to fail after the first accident. $700 isn't a lot of damage, so my first inclination would be that the truck wasn't so mangled that nearly anyone would have been suspicious of its roadworthiness. Presumably, no one told her that the damage or specifics of the impact might result in the truck being unsafe? Most of the time, if a vehicle has minor damage but can be driven, it is driven until an appointment with the insurer and then the body shop results in it getting fixed.

Somewhat of a paradox here (at least in light of how it would be considered at first blush without expert testimony): the greater the first impact, the greater the likelihood that the first impact caused the second accident, but also the greater the likelihood that your daughter should have known that driving the vehicle would be dangerous. And vice versa. But with an expert's testimony, that may not be so.

The next question is about money -- is enough at stake that the cost of disputing this makes sense to either side? Even meritless cases have a "nuisance value" for settlement, which is closely related to the amount it will take the insurer to resolve the claim by paying attorneys, adjusters, etc. The other side of that is whether it is worth your while to retain an attorney if he or she won't take it on a contingency basis (and if it's only about the amounts for property damage you recited, contingency is probably out of the question). The insurer is pretty sophisticated in those calculations, so that may guide your decisions in negotiating with them if you don't have an attorney. You can probably do this via small claims court, but without an expert you will probably have to pay to address the evidence questions above, you have a tall hill to climb.

Usually, the insurer is a lot more concerned about paying for the potentially higher cost of personal injuries than for property damage. The argument he's making is often made in a personal injury (P.I.) case, and I could imagine the insurer jumping at the opportunity to settle a P.I. case for the amount of the property damage (in exchange for a release of liability on all claims -- including the P.I. claim), though it is typically a prohibited practice for an insurer to hold out on paying one kind of claim for which liability is clear in an effort to effect a favorable result on another.

Good luck.

STD Disclaimer: This is not intended as legal advice, is not intended to be relied upon in your specific case, is worth exactly what you are paying for it, this posting member is not admitted to practice law in your jurisdiction, and for reliable advice you should consult with an attorney in your area with expertise in this area of law, etc., etc., etc.

 

[Dudewado]

Mr. Bum,

Thank you for taking the time to reply.

I will carefully consider your opinion, wait until the truck is more thoroughly inspected, and talk more to the insurance adjusters before deciding how to proceed.

I don't want to make a federal case out of this, and I am not looking to get something for nothing.

Thanks again,

John

PS I just realized I misspelled "Legal"

 

[FJR_pig]

Pretty sound advice from our resident bum. I'm usually on the investigative side of these things after they happen. Did the police not respond to investigate the first crash? Their input on the level of damage to your daughter's Dakota may be key, too. I'd hate to think they'd let her drive away if there was any question about the vehicle's reliability.

These things sure can get messy. We just went through it in June. Another driver ran a stop sign and t-boned my wife in her Grand Cherokee. She walked away, the police came, investigated and issued a citation to the other driver. She testified at traffic court when the guy pleaded not guilty on his citation, the judge found him guilty and his insurance is still trying to come after us. The worst part is that our insurance (USAA), with whom I've been since 1991, started to immediately roll over and play dead before we raised an objection. We have impeccable driving records with no crashes between us, either. It can be a very frustrating experience to have a fender bender, so I wish you luck.

 

[Henchman]

As a former adjuster here is my opinion:

Unless you can prove (the burden of proof is on you) that the part failure which caused the second loss was not due to the first loss you have no argument. The cost to prove this would probably negate any claim money received.

Check your policy. My bet would be that there is a stipulation regarding roadworthiness of the insured vehicle. Anyone could effectively argue that a vehicle involved in a collision should be checked out to ensure that there is no mechanical damage which would render it un-roadworthy.

My advice is, make a lot of noise (friendly) and offer a compromise right off the bat. Maybe half the retail Bluebook.

The company will probably decide it's cheaper to settle than deal with your constant calls and potential litigation and your daughter may at least get more than $700 out of it.

 

[kulwen]

My advice, pick up the phone and call the state insurance commission. Tell them the story and let them tell you your rights.

https://www.cbs.state.or.us/ins/

The issues I had in Nevada were long and drawn out. The last issue I had I picked up the phone and called the insurance commission and had a check in hand three days later. In Nevada if the insurance commission makes a request the insurance company has 24 hours to respond with the details, including the delay. With my last issue the other guy was dodging phone calls form his insurance company and it was over 30 days.

If, the state finds the company is violating the rules they agreed to when becoming licensed a larger issue is made. The state law is only a small portion of the rules an insurance company must follow. The insurance commission guy told me if they find the insurance company is delaying a (rightful) settlement with the hope of getting me to reduce the amount I was asking the state would find the insurance company $1,000 a day till I receive payment.

In addition, I explained the other guys insurance adjuster was considering a dent in my door “previous damage” and argued it would not be covered. The guy at the insurance commission explained often (not always) insurance companies train their employees to interpret the law in a manner that benefits the company. The employees are often trained the wrong interpretation of the law.

Did that something break after the inspector did the inspection?