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What is "third party damage" in a car accident

Discussion in 'Auto Accidents, Injuries' started by Brijo, Jun 26, 2022.

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  1. Brijo

    Brijo Law Topic Starter New Member

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    Jurisdiction:
    California
    I'm trying to ascertain how much I can ask for (was hit by another driver), so I combed older posts on here and came something about "third party damage", which I've copied & pasted below. But I don't understand what "third party damage" is as it relates to a car accident.

    What I've learned so far is (I think) if I want to keep my car and have it repaired (I do), then I'm entitled to: the cost of repairs - the salvage value.

    What I'm unsure about is if I can tack on the cost of a rental car *in addition to* the maximum amount for the car repairs. Is the rental car cost considered "third party damage"?

    For example, let's say 1) the car is worth $6000, 2) the repair estimate is $7000, and 3) the salvage value is $500.

    I assume then that the max I could collect (and keep the car) would be: $6000 - $500 = $5500.

    But then the cost of a rental car while mine is in the shoppe is about $800. So can I then ask the court to award me $6300 total ($5500 + $800 = 6300)? I'm not sure if that conflicts with what's copied & pasted below, about "recovery for third party damage is limited to..."

    Am I the first party since I was hit, the driver who hit me is the second party, and anyone else whom I pay in the course of having my vehicle repaired is the third party?

    I've posted here before a while back but can't find that post anymore, so I'm asking this one question because I want to make absolutely certain that what I ask the Court for is consistent with all applicable laws. Going to court makes me nervous and one time I came across a particularly hard-nosed (mean) judge so I loathe going to court but it seems like it's the only way to get compensated. I just don't want to give the judge any reason to be angry or infer that I'm being audacious if I inadvertently ask for too much.

    "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."
     
  2. army judge

    army judge Super Moderator

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    Read the referenced information at your own peril and risk, as you must perform your due diligence before acting on any information gleaned from sources unknown to you.

    I provide the links only as POTENTIAL reference material ABSENT my personal recommendation.

    Third party automobile accident claim guidance in CA:

    A Guide to "Third Party" / Liability Insurance Claims

    Filing a Third-Party Claim for Car Accident Vehicle Damage

    Third Party in a car accident. | Legal Advice

    https://www.allstate.com/resources/car-insurance/third-party-insurance-claims

    San Leandro, CA Third Party Claims Attorney | Andrew J. Kopp Attorney at Law
     
  3. Brijo

    Brijo Law Topic Starter New Member

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    The at-fault driver was uninsured though.
     
  4. army judge

    army judge Super Moderator

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    If you were/are adequately insured (collision, uninsured, underinsured, property damage, etc...); your insurer will make you whole.

    If you don't carry full coverage your only option would be to sue the at fault driver.

    In the event you prevail in court, if the at fault party is a ne'er do well DEADBEAT, you'll end up imitating a dumb canine chasing it's tail.

    Good luck.
     
  5. Brijo

    Brijo Law Topic Starter New Member

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    Thanks but that answers none of my questions.
     
  6. army judge

    army judge Super Moderator

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    You're very clever, chief.

    You saw right through me.

    Life certainly can become an enigma at times.

    Fixing the barn door after all the horses have disappeared doesn't help find the missing horses.
     
  7. Zigner

    Zigner Well-Known Member

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    If you are going through your own insurance then the only way you get rental reimbursement (from your own insurance) is if you have rental coverage.
     
  8. adjusterjack

    adjusterjack Super Moderator

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    Let me see if I can clear this up for you.

    A person who buys insurance is the first party. His insurance company is the second party. A person making a liability claim is the third party.

    You are the first party in a claim under your own insurance policy.

    You are the third party if you are making a claim against somebody else.

    The item you quoted has to do with a "diminished value" claim against an at-fault driver. It has nothing to do with a claim on your own policy because your own policy doesn't pay for "diminished value." It pays only for replacement of your car if it's a total loss or for repair of your car if it is not a total loss.

    You are not "entitled" to keep your car (less the salvage value). That is the option of your insurance company.

    In California the total loss formula is:

    Cost of repairs + salvage value. If the result is greater than, or equal to, the ACV then the car is a total loss.

    Using your figures:

    $7000 repair cost + $500 salvage value = $7500.

    ACV of the car $6000 which is less than $7500 so you would be paid $6000 less your deductible.

    If your insurance company allowed you to keep the car you would be paid $6000 less $500 salvage less your deductible.

    If you did not have Rental Reimbursement on your policy you would get no money for a rental car.

    If you had Rental Reimbursement on your policy you would be entitle to a car rental from the date of the accident until the date that the insurance company tells you what the total loss settlement amount is and not for any time that the car is in the shop.

    Then why are you talking about court?
     
  9. Brijo

    Brijo Law Topic Starter New Member

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    Maybe I should have clarified that insurance companies are not involved. My policy only covers danage that I might cause, and I didn't cause any.

    Why court? So I can collect money from the other driver personally. Unless you're saying that them being uninsured exempts them from liability?

    There are indications that the other driver may settle. But that doesn't mean that *I* shouldn't have all *my* ducks in a row and be 100% prepared. If there's one feeling I can't stand, it's going into any situation like this unprepared. To me that means FULLY prepared knowing all applicable laws & norms.
     
  10. Brijo

    Brijo Law Topic Starter New Member

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    My car is drivable though, I've been driving it since the accident. The only period of time I'd be w/out it is when it's in the shop being repaired.
     
  11. Brijo

    Brijo Law Topic Starter New Member

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    My insurance co isn't involved because my policy only covers damage that I might cause. I filed a claim just as a matter of course and it was denied (as expected) because the other driver hit me not vice versa.
     
  12. army judge

    army judge Super Moderator

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    Hmmm.....

    Being prepared, ready for any contingency is certainly appropriate.

    However.... \/\/\/

    You insured your vehicle for liability.

    You chose not to add uninsured or underinsured motorists coverage.

    UNINSURED MOTORIST STATISTICS 2021:

    There are 28 million uninsured drivers drivers in the U.S.

    1 in 8 motorists (12.6%) don't have auto insurance.

    There were over 460,000 more uninsured drivers in 2019 than in 2015 due to growth in the overall population of licensed drivers.

    Mississippi has the highest rate of uninsured drivers (29.4%) and New Jersey has the lowest (3.1%).

    It’s estimated that insured drivers paid over $13 billion per year for costs related to uninsured motorists.

    Uninsured Motorist Statistics 2021
    ...

    Most Uninsured Drivers By State - Policygenius
    ...

    Uninsured drivers by state | CarInsurance.com
    ...

    Uninsured Motorist Statistics: Growth in Uninsured Drivers by State
    ...



    Here’s Why Uninsured Drivers Are Running Up Your Insurance Bill
    ...

    You might wish to investigate adding uninsured and underinsured motorists coverage to your policy, maybe even other coverages.
     
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  13. Zigner

    Zigner Well-Known Member

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    You are entitled to the fair market value of your vehicle just prior to the loss. You may also be entitled to a reasonable amount for a rental vehicle.

    EDIT: If the vehicle is considered a total loss, then no, you aren't entitled to rental costs during the time it is being repaired.
     
    Last edited: Jun 27, 2022
  14. adjusterjack

    adjusterjack Super Moderator

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    Yes, you should have said that in the beginning.

    It doesn't.

    That's good.

    OK.

    Now, given that additional information, and assuming you are correct that the other driver is at fault, the following applies.

    You are entitled to the cost to repair your car if it is not a total loss.

    You are entitled to a rental car while yours is in the shop, subject to a mitigation requirement. If it's going to take months to repair your car due to delays, parts, etc, you'll be required by the common law of negligence to mitigate the expense of a substitute vehicle. Dollar amounts are, of course, subject to dispute.

    You are entitled to an amount for diminished value per the rule that you quoted. But since your car is old and of low value that is likely to be minimal and also subject to dispute.

    The defendant is entitled to rely on the total loss formula just like any insurance company. He pays you the $6000 ACV (from the earlier example) and you sign the car over to him. He has the option to allow you to keep the car and pay you the $6000 less the salvage value.

    What does that mean? Have you filed a lawsuit yet? Are you in the talking stages? Does he have any money? People who go without auto insurance usually don't have thousands available to pay for somebody else's damage.
     
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  15. army judge

    army judge Super Moderator

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    The hidden jewel among the knowledge our Oracle of Insurance
    has dispensed for all today!!!

    Deadbeats, ne'er do wells, and scammers are notorious for saying most anything while doing nothing.

    In Texas, that's called "all hat and no cattle, no horse, no saddle".
     
  16. Brijo

    Brijo Law Topic Starter New Member

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    HE has the option? Don't *I* have the option to demand whichever option *I* want? I mean it's MY car! I need it and have no time, ability or desire to go shopping for another car right now. Plus doing so would cost me even more $$ in registration + 7.5% sales tax. It wouldn't make sense for me to do that. Especially now given the current market conditions (used car prices are much higher than before covid). And then I wouldn't even know what I'd be getting, eg its mechanical condition. At least I know what I have now, which is a mechanically sound car even if it's banged up a little. I will NOT be parting with my car over this under any circumstance.

    To be at the mercy of what the at-fault party (or insurance company) wants to do would be a huge slap in the face...am *I* not the one who gets to decide?? It took me months of shopping before I found this one. I require a seller to have maintenance records & receipts. I won't buy a used car without it, and finding a seller like that can be a rarity, on top of finding a car that I like. It's just a very time-consuming undertaking and I am unable to do that right now.

    I haven't yet, but I have the blank court forms to fill out. The other driver had an attorney acquaintance contact me to request a copy of the estimate. They expressed surprise at how high they thought it was. I did get cheaper estimates later, but the first was the most expensive, and that's what I sent them. I can come down a little if it'll save me from having to go to court (I can do without a new $800 headlight for example; it's not broken just lightly scratched).

    Also I pulled their vehicle record with the DMV and there's another (second) owner listed. Possibly a family member I imagine (same last name). So I don't know if that person could have any liability or not? The other owner was not in the car.
     
  17. adjusterjack

    adjusterjack Super Moderator

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    No. But you can ask.

    Then here's what you do. Put your car into the shop. Get it fixed for the lowest possible price, Pay for the repairs yourself. Take a copy of the PAID invoice to the person that hit your car and demand payment.

    Then there's no argument about "estimates" that may be "padded."

    You'll also find out real fast whether the guy has any intention of paying you. You don't want to be dicking around with this for months only to find that you can't collect any money even if you do win a lawsuit.

    Right. You want them to pay the higher amount so you can get your car fixed for a lesser amount and pocket the difference.

    Like I said, get your car fixed at the lowest possible price and submit the paid invoice.

    You would have to prove the 5 elements of Negligent Entrustment under CA law:

    CACI No. 724. Negligent Entrustment of Motor Vehicle :: California Civil Jury Instructions (CACI) (2022) :: Justia

    Do you see any of that in your situation?
     
  18. Brijo

    Brijo Law Topic Starter New Member

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    Maybe you missed the part where I said I'd be willing to settle out-of-court for a lesser amount?

    When I forwarded them the estimate, it was the only estimate I'd received.

    Of course I want to try for the highest amount, because 1) one variable is the cash value of the car itself and I have no idea what a judge might determine that to be. So it's in my interest to ensure I don't get "short-changed", 2) I have no idea if the actual cost of repairs would exceed the months-old estimate or by how much. If I were awarded a lower amount then I'd have to make up the difference out of my own pocket after the fact, but have no way to be compensated for it. Why should *I* be worried about saving the other driver any money whatsoever over saving MYSELF from extra expense? For THEIR wrongdoing??

    Making sure the other driver is treated fairly isn't my job, nor did I smash into them then try to blame them for it. If you got only one shot with no possibility of a do-over then you'd do the same I'm sure. Only a fool wouldn't. I didn't create the system.

    My time & energy are worth far more than a few possible extra dollars.
     
    Last edited: Jun 28, 2022
  19. Brijo

    Brijo Law Topic Starter New Member

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    And btw the lowest estimate doesn't include a replacement fender, only hammering out the dent. I'd require the fender to be replaced. The two estimates above that include replacing the fender. I NEVER go with the cheapest of anything.

    I'll have to read that link when I'm at my computer vs phone.
     
  20. Zigner

    Zigner Well-Known Member

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    Using your example, let's say you have an estimates from several reputable shops. One for $9,000 and one for $8,000 and one for $5,000 and one for $4,500...how much would you be entitled to?

    Answer: $4,500 because that's what it would cost to bring your vehicle back to the condition it was prior to the accident using a reputable shop.


    Let's say now that the estimates you have are $7,500, $7,000, and $6,500. How much would you be entitled to now?

    Answer: $6,000 - because that's all the car is worth.
     
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