Why are Injury Lawyers Afraid of Property Damage Claims?
Unless a person is catastrophically injured or disabled in a wreck, one of their primary concerns is their car and how to get it fixed or replaced. This makes sense – in most places in the US, you can't get anywhere without a car, let alone work, school, pick up the kids, get food, etc. The car is our vehicle for livelihood.
But who fixes the car? Who is responsible for paying for it? How much should you get for it? What shop do I take it to? What if the insurance company wants to total it out but you don't want them to because getting a newer car would be insanely expensive? And lastly, who is going to help you and advocate for you on your property damage and total loss claim?
The answer to that last question is troubling. The vast majority personal injury firms do not represent an injured client on their property damage claim. So even though the property damage is the second worst thing that just happened to you (the injuries are no. 1), that lawyer will avoid having to deal with the property damage section of the case – you know, since he won't get any money from it.
At Paisley Law we represent our client on all phases of the case, including the property damage section. This is included in our basic contingency fee agreement (generally 33 and 1/3% for pre-litigation, 40% for litigated cases, and 45% for cases on appeal). We only take a fee from the bodily injury section and do not charge anything additional to handle the companion property damage, diminished value, and total loss claims.
The property damage phase of the case is so important to the client, that we cannot understand how any attorney could effectively divorce himself from such a critical opportunity to help their clients.
This is the property damage protocol that we've developed and would like to publicly share.
Paisley Law's Property Damage Protocol
- Call the Police and Have an Accident Report Done.
There are too many consequences that can happen by NOT having a police report done on your accident. I've seen too many times where the at-fault driver apologizes, admits liability, and begs not to call the police for whatever reason. He gives his insurance information and identification, and you feel for him. The next day he lies to his insurance company and makes up a completely different story of events and blames you for the wreck. I've also seen where the other driver will provide insurance and later it's determined the insurance wasn't valid and you're stuck making the claim on your uninsured motorist coverage. The problem now is that your uninsured motorist carrier has a requirement that you must make a police report within 24 hours of the wreck in order for them to cover the accident – now they're denying coverage altogether. It's not convenient but protect yourself and ALWAYS make a police report when someone hits you.
- Is the Car a Total Loss or is it Still Safely Drivable?
My first question is whether the car is likely a total loss or is it safe to drive around until the other party accepts liability and pays for your rental while your car gets fixed. This is important because it determines whether you should go through other car's insurance (the at-fault driver), or your own insurance. Nobody wants to use their own insurance when someone hits you, but many times you have to.
Scenario 1(a): Your Car Is a Total Loss or Unsafe to Drive – You're injured and it's the other guy's fault, but you need a replacement car asap. Unfortunately, the best course of action is to call your own insurance company and make the property damage claim through them. If you don't you'll have to wait 5 days or so until the police report is ready, and then when it is ready you call the liable company and they start the claim process. They won't give you a rental that day. They are entitled to “investigate” liability and speak with their insured about the incident before they assume responsibility. This usually take 1-2 more weeks – so that's at least 2-3 weeks without transportation. Most people I know cannot afford to go that long without a car, so by necessity they are stuck making the claim through their own policy. If you're worried about this increasing your rates or getting your policy cancelled, then relax and read our previous blog on this issue. Your claim should include coverage for a rental car. If someone does not have rental car coverage we recommend paying out of pocket, saving receipts, and then adding this to the property damage claim against the liability carrier when they finally do acceot responsibility
Scenario 1(b): Your Car is Wrecked but Safe to Drive – It was a fender bender, you've got some bad whiplash injuries, but it looks like the car can be saved. If the car is safe and legal to drive, the client can wait for the other driver's liability carrier to accept responsibility, and keep driving the damaged car. 2-3 weeks later, they can drop the car off at a reputable shop, get it assessed, and have the liability carrier pay for the client's rental until it is fixed. Nothing would be paid out of the client's pocket.
- Get the Proper Value for the Damage or Total Loss.
Insurance companies don't tell you how to maximize the value of your property damage claim. Why would they? They usually give you a number and they tell you to take it or leave it. There are ways to make sure your car is fixed properly, and if it cannot be fixed properly, then we make sure the car is valued appropriately.
What to do When the Car CAN be Repaired
Get it Properly Repaired - Whether someone is using their insurance or the liability carrier is paying this bill, making sure the car is fixed properly is critical. Insurance companies will suggest taking it to one of their body shops, and we do not recommend this. We advise our clients to see reputable body shops with minimal affiliation with the insurance companies. Insurance affiliated body shops will base their estimates only on what they can see. It's not until the breakdown where they remove the outer panels where they can see the real damage like the frame, mechanical defects, alignments, etc. These insurance body shops also will sometimes try to use after-market parts and cheap out on the original manufacturer parts. A reputable body shop will make sure that any supplemental damage estimates get properly added to the claim and make sure it's fixed properly.
After the car has been repaired, the vehicle should always be test driven to make sure there are no lingering mechanical or obvious defects. If there are, the car should be brought back to the shop for further inspection and repair, and the adjuster should be immediately informed so they can extend the rental.
- Make a Diminished Value Claim - The second part of a property damage claim that is not a total loss is getting the diminished value for the vehicle. This is a completely separate claim that is made after the car is properly repaired – it is not automatic and your insurance company won't tell you about this. Because motor vehicles are worth less after a wreck, the paying insurance company must pay the difference between the value of your car with no accident history and the value of the car after the wreck. The insurance company will always low-ball someone here. To recover the proper diminished value for your vehicle we usually hire an independent appraiser to assess the car and come up with this adequate number. Their fee is usually quite low compared to the increased value they get for your car. Email us if you'd like a list of our preferred vehicle appraisers.
What to do When the Car is a Total Loss
The insurance company will usually pay for a rental up until they are ready to write you a check for the cash value of the vehicle. This amount is usually the lower end of trade-in values for your vehicle, and not at all what it would cost to go purchase your vehicle on the open market. Whatever value they determine for the value the car, they still must add the appropriate tax, tag, and title to the number they come up with. Almost everyone is disappointed in the initial value they offer, and they are told by the total loss department it non-negotiable and they will not negotiate.
The decision on what to do next is difficult because they aren't paying for your rental car anymore (and they don't have to). If someone can afford to purchase another vehicle or go without one for another few weeks without getting the property damage check, this is where they can drastically increase what the insurance company will pay for their car.
Invoke the Appraisal Clause - If you can stomach going another 3 weeks without having the value of your totaled car, I would invoke your appraisal clause by selecting a qualified vehicle appraiser, and letting them valuate your car based on similar models in your local market. This usually costs $400-$600 but is well worth it. When you invoke your appraisal clause this allows you to hire an appraiser of your own, and then the insurance company will then hire their own appraiser. The two appraisers will then get together and hopefully agree on something the client can be happy with. I personally used Chris Allen with Allen's Automotive Appraisal when my car was destroyed while parked in front of my house. State Farm valued my car at $45,000 and Chris convinced them that $55,000 was the real value based on the specs, features, make, and model. I spent $400 and that increased the value by $10,000.
The process is this: hire an appraiser, and they will write up the appraisal report and send you a form demand letter with the report and the increased value. The insurance company upon receiving it will hire their own appraiser and the two appraisers will correspond with each other to hopefully reach an agreement. As soon as they do, you will receive a check for their newly appraised value that should make you much happier. If the appraisers don't agree, an independent arbitrator is appointed that will evaluate the 2 positions and decide on the proper value, and her decision is final.
What to Do When the Car is a Total Loss but You Want to Keep It
You've got your 13-year-old Subaru with 160,000 miles on it and you wanted to drive it into the ground before someone plowed into the back destroying the bumper and the rear lift gate. You've loved this car and it's worth far more to keep driving it than the expense of getting something newer. It would be easier and cheaper for the client to get the car fixed themselves on their own instead of going through a high-end commercial body shop.
A client in this scenario can either forego the insurance claim altogether (so there's no declaration of total loss on the title), or just accept a check for the market value of the vehicle minus the salvage value of the car. If the latter option is chosen, the client's car title will be changed to a salvage title, and the client can do whatever repairs that make it road worthy and then have the car reassessed by the DMV and be given a rebuilt title, so the car can be safely operated and insured. The checklist for applying for a rebuilt title in Georgia can be found here on the Georgia DMV website. Other states have similar requirements.
If a person wants to keep the car and accept the total loss value minus the salvage value, I would still recommend reaching out to an appraiser to make sure that old car is being valued appropriately.
The protocol above resolves applies to almost all property damage loss claims. If you're injured in a wreck that's not your fault, it initially ruins your day, and the property damage claim only adds to the pain. Having a Georgia personal injury lawyer that understands and has been through this claims process successfully himself is critical in making sure you aren't leaving a lot of money on the table. The higher the value of the vehicle, the bigger the margin of what you might be losing is at stake. Don't accept their low-ball number – fight back and call Paisley Law.
Attorney James Paisley is a personal injury and wrongful death lawyer that practices in all of metro-Atlanta and Georgia. For a free consultation on a personal injury or wrongful death case that involves a property damage claim, call Paisley Law, LLC at 404.618.0960 or email James directly at [email protected].
Disclaimer: None of this is to be construed as legal advice and is only generalized steps to take that do not take into account anyone's specific legal situation. Call us or any other competent attorney to be advised on how to properly handle your injury and property damage claim.