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I got rear-ended. MUST I go through other driver's insurance to collect for the damages?

Discussion in 'Auto Accidents, Injuries' started by Brian777, Jul 16, 2021.

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  1. Brian777

    Brian777 Law Topic Starter Member

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    No, I don't. The idea is to ask for everything I'd like, then whatever amount I'm awarded (assuming that's the case) would seem like a relative bargain, and seem more fair to the other party. In other words, if I ask for $10k and the judge awards $7000k for example (repairs + cost of rental car), then it will seem fairer than if I ask for $7000k and get $7000k. I don't know, that's just my thinking. It would be a way for the other side to save some face, know what I mean?
     
  2. Brian777

    Brian777 Law Topic Starter Member

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    I know the defendant can appeal. Hopefully his insurance co would just pay it though rather than litigate over a few thousand dollars. I got three estimates total, the top being $6700, the middle one $5500, and the insurance co's shop's being the partial at about $4300. I intend to get at least one more full estimate.
     
  3. Tax Counsel

    Tax Counsel Well-Known Member

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    The defendant saving face isn't a concern here. It's the insurance company that's paying. The defendant isn't out money regardless of how it comes out. The insurance company is just looking at the total of what it'll have to pay should it lose in court and bases its decisions on that. Its lawyers are not going to be fooled into thinking the case is worth more when you ask for more than that car is really worth + your out of pocket rental expenses, etc. Also, you don't do yourself any favors with the judge in asking for more money than the maximum you could get given what you say are your provable damages. So keep it at least somewhat realistic (e.g. the top end of what someone might have really paid for that car prior to the accident) and don't try to play psychological games in picking the number. Those kinds of games rarely work in your favor.
     
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  4. adjusterjack

    adjusterjack Super Moderator

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    OK. I'll buy that Allstate's trying to scam you. You're not obligated to use their shop.

    $72 per day. Might fly. Just understand that the "optional" items offered by a car rental place aren't compensable.

    Seems reasonable. Here's some background information that might help you with a diminished value claim in California.

    "Recovery for third-party property damages is limited to the difference between the FMV of the vehicle before the loss and its value after the loss. Ray v. Farmers Ins. Exch., 200 Cal. App.3d 1411 (Cal. App. Dist. 3, 1988); Moran v. California Dep’t of Motor Vehicles, 139 Cal. App.4th 688 (Cal. App. Dist. 4, 2006). The California Jury Instruction (CACI-3903J, 2017), reads in part as follows: However, if you find that the [e.g., automobile] can be repaired, but after repairs it will be worth less than it was before the harm, the damages are (1) the difference between its value before the harm and its lesser value after the repairs have been made plus (2) the reasonable cost of making the repairs. The total amount awarded may not exceed the [e.g., automobile] value before the harm occurred."

    DIMINUTION OF VALUE IN ALL 50 STATES (00165375).DOC (mwl-law.com)

    Check those case citations on Google Scholar and see if there are more recent similar decisions.

    You're also going to need documentation of potential diminished value. In small claims court a written statement from a dealer or a diminished value appraiser may suffice.

    In a higher court the expert would have to come to court to testify and that could cost you about what you are claiming for the DV and that cost is not recoverable.
     
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  5. adjusterjack

    adjusterjack Super Moderator

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    That's possible. Insurance people make a big deal about evaluating claims based on their merits. But the inside scoop here is that every time we were going to deny a claim or slash it we were admonished to consider the cost of litigation if we got it wrong. So we had to be damned sure of our position before moving forward. On larger claims that often involved a conversation with the company attorney.

    If you manage to get a judgment for 100% or close to it, Allstate will have to consider the cost of their attorney which could amount to what they would be fighting to save.

    No guarantees, of course, and I do recall an insurance company sending an attorney to court to fight my friend's $600 dispute. My friend won. This was decades ago so the attorney fees were probably about $1000. It was all very amusing.
     
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  6. Brian777

    Brian777 Law Topic Starter Member

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    I slightly misread your response earlier.
    I'm not totally sure how to estimate the car's value, but the consensus here seems to be $7000-$8000. That's more than the maximum amount generated when I look up the car's value on Kelly Blue Book's website. So I've been wondering what source everyone on here is using to determine its value?
    I think I could show it's worth the maximum value because a) it was in excellent condition when I bought it (might get Affidavit from previous owner attesting to its condition, as well as show Carfax report), b) had very low mileage, 132,000 for a 2001; if average mileage is 12k-15k per year, then this car has half the # of miles one would expect; it was the previous owner's "weekend car".
    It really was in superb condition. People passing on the street would even compliment me on it! And the M Sport package, omg, when I flip the transmission into Sport mode and floor it, it feels like I'm on the Millenium Falcon about to hit warp speed...it makes me giddy! Not relevant here, just saying.
     
  7. adjusterjack

    adjusterjack Super Moderator

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    Everybody thinks their car is worth more than it is. Truth is, it isn't. You can argue "value" or "worth" but it's just speculation. Diminished Value is also speculation. I wrote that $1000 seemed reasonable. Reasonable is in the eye of the beholder. A judge might see just a 20 year old car with 125,000 miles on it and not give you a nickel.

    You want proof of DV, get the car fixed and sell it. Then subtract your sale price from the maximum KBB price and there you have it. Neither the court or the insurance company is going to pay you based on your biased opinion of the car's value.

    Especially since you paid around $5000 for it. You don't get to profit off the accident.
     
  8. Zigner

    Zigner Well-Known Member

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    Diminished value doesn't apply when a car is a "total loss" - just sayin'...
     
  9. Brian777

    Brian777 Law Topic Starter Member

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    Well considering the length of time, six months, that it took me to find a car to buy (not just this car, but A car--it just so happened that I lucked out and got the exact model I've always wanted), not to mention the enormous dedication of time I've had to take running around to various repair shops for estimates, filing a claim only to have it denied, preparing a lawsuit and on top of that still having to either get the car repaired (three weeks in the shop) or get a new car (which would require God knows how much more time of searching AGAIN), it sure feels like I should be compensated for so much time and effort. And this all happened a mere 14 weeks after I bought the car.

    I get your point though.
    But it sure feels like I should be entitled to collect for the hours, weeks, months of my time, not to mention the emotional distress (which I know I'd have to have documented by a psychologist).
     
  10. Tax Counsel

    Tax Counsel Well-Known Member

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    I understand how you feel, but your time for all this is not compensable under the law.
     
  11. Zigner

    Zigner Well-Known Member

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    Your "emotional distress", even if documented, probably wouldn't be compensable. At best, you might get a token amount for it.

    I'm quoting this earlier post because I think it just about sums things up:

    If you only pay for the parts and put them on yourself, then you'll only be compensated for the parts.
     
  12. Brian777

    Brian777 Law Topic Starter Member

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    The only hard evidence I've got is a 10-15 second video & photos of the aftermath immediately after exiting our cars. It shows the damage to both cars, the street, positions of each car, and distance from the intersection from which the defendant turned. There hasn't been any dispute about what occurred; the only dispute is who's at fault, and to what extent.

    I visited the intersection recently to take more photos/video of the path the defendant traveled, showing how wide the street is and that his view was totally unobstructed (think I might have posted a pic on here)

    Also I found the relevant Vehicle Code sections.

    Regarding right-of-way, Division 11 of the California Vehicle Code (titled “Rules of the Road”), Chapter 4 sec. 21800 states:
    (a) The driver of a vehicle approaching an intersection shall yield the right-of-way to any vehicle which has entered the intersection from a different highway.
    (b) (1) When two vehicles enter an intersection from different highways at the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on his or her immediate right, except that the driver of any vehicle on a terminating highway shall yield the right-of-way to any vehicle on the intersecting continuing highway.
    (2) For the purposes of this section, “terminating highway” means a highway which intersects, but does not continue beyond the intersection, with another highway which does continue beyond the intersection.

    The defendant was driving on a "terminating highway" (alley he was in terminates at a T-intersection with the street I was on), and the street I was on was a "continuing highway". Sooo the law seems crystal clear, I don't see any ambiguity there at all. I had the right-of-way (but still I stopped the second I saw him turning in my direction).

    Personally I feel that only a doofus who wasn't paying attention would go careening around a corner at an intersection at high speed without ascertaining 100% that nothing was in his path.

    I believe he did so because that particular street is VERY heavily used (the neighborhood is densely populated, it's nothing but huge apartment buildings housing hundreds of residents, all with cars who use the same alley daily), but there was a lull in traffic at that moment, no other cars on the "continuing highway" (except me), which is rare for that street. So I think he got complacent or just eager, maybe did a cursory glance before starting his turn.

    The only explanation can be that he simply wasn't looking where he was going, or not paying sufficient attention. I (and dozens of other cars) made that same turn daily, and you HAVE to be extremely cautious.

    I guess it will come down to how negligent the judge thinks he was given a) how heavily trafficked those streets are, b) the 100% unobstructed view of the "continuing highway" is, and c) the vehicle code.
     
  13. Brian777

    Brian777 Law Topic Starter Member

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    The thing is I don't have that kind of cash on hand (I mean I have it, but I wouldn't use it on this, given that the car is perfectly driveable).

    Also I'm not sure what I might do when all is said & done. I've been toying with leaving the country for a few months (to South America), in which case I'd sell my car first anyway. Best case scenario I can get a fat check in hand from this case, sell the car to a junkyard for parts for whatever I can get, and be free to sip caparinhas on the beaches of Rio (just a metaphor I'm not much into beaches and less so into drinking). All depends on if I can take my work with me though, still being worked out.

    There's also the issue of the *other* fender-bender I had a few days after this one. The estimate for that is $3000+. So between the two of them, I'm wondering if I could potentially collect more than the car is worth? Would either lawsuit have any bearing on the other? I'll probably be filing in different courthouses, given the different locations where each occurred.
     
  14. adjusterjack

    adjusterjack Super Moderator

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    That does it. You keep saying the same things over and over and now you want to know if you can game the system and get more money than your car is worth.

    The answer to that is no.

    I don't know why this thread was reopened after I closed it or who reopened it but this time it needs to stay closed because, at 113 posts, it's gotten way beyond making any sense. If it gets reopened again, I'll delete the whole thread.

    Thread closed.
     
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