Auto Body/Insurance Negligence?

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PostPosted: Fri Dec 30, 2011 8:38 am   Post subject: Auto Body/Insurance Negligence?  

Ok, so my girlfriends situation.....



We were driving down on the highway on a rainy day at a safe speed(well under the speed limit), went over a slight hill and were presented with a full bumper right in the middle of the lane. We swerved out of the way and did a full 360 and crashed into the guard rail. Luckily we did not hit another car but the whole right side of the car, including some of the front and back were smashed in. We were sure the car was totaled. We had witnesses and the fault was not placed on us per the police report due to the unique circumstance.



Upon getting the estimate from a Liberty Mutual recommended body shop (mistake #1), we were told the car was slightly UNDER being totaled so the repairs would be completed. No big deal, we loved the car and weren't looking for a check. As long as they were able to complete the repairs to a satisfactory level.



The initial body work took 9 weeks. Upon getting the car back we noticed 3 issues. #1 was the back hatch (its a hatch back) hydraulic was either damaged in the accident or from their work. It no longer stayed up when the hatch was opened, causing it to fall on our heads. #2 was the interior of the door they used to replace the damaged door had holes in it which was completely. unacceptable. #3 was the windshield fluid was leaking (it must have cracked in the accident).



Another week went by for these repairs... We get the car back. 2 days into driving it, THE AIR BAG LIGHT COMES ON. Upon our request, Liberty sends the car to a Volkswagon dealership upon our request. Now they tell us that not only were the airbags not functioning correctly, but there was damage to the steering column.To add salt to the wound, they tell us that there is no evidence that this was from the impact and they are not prepared to cover the cost of repairs.



My concerns are as follows:



1.) The car is a 2007 and has never had any other issues until this point. They are trying to say that after a major accident its a big coincidence that the airbag and steering column are damaged?



2.) Isn't it negligence from the original auto-body ship that they returned the car to us with air bags that weren't functioning and a damaged steering column.



Is the insurance company responsible for these damages as the body shop has been in possession of the car for all but 1-2 weeks since the end of August? Do we have a legal leg to stand on?



Thanks!


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PostPosted: Fri Dec 30, 2011 10:28 am   Post subject:   

Quote:
they tell us that there is no evidence that this was from the impact and they are not prepared to cover the cost of repairs.


Is "they" the VW dealership, the body shop, or Liberty Mutual? No way to understand your dilemma properly without this question being answered.



Quote:
2.) Isn't it negligence from the original auto-body ship that they returned the car to us with air bags that weren't functioning and a damaged steering column.


It may or may not be the fault of the repair shop. I assume the airbags deployed in the collision and had to be replaced. You'd have to get an opinion from someone experienced in repairing vehicles like your girlfriend's.



The good news is that since Liberty Mutual agreed to repair your vehicle rather than total it, and the repair shop is one they sent you to, they will continue to back the quality of the repairs for as long as your girlfriend owns the vehicle.


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PostPosted: Fri Dec 30, 2011 10:47 am   Post subject:   

Sorry for the vagueness of my description.



Currently the car is at the Volkswagon dealership. This was our request after the Liberty Mutual recommended body shop was unable to take care of the car the first two times around.



So to summarize, the Volkswagon dealership discovered two new damaged areas of the car that the original body shop was unable to discover/fix the first two times around. The insurance company was notified regarding these issues and now we are essentially being told that they must have happened in the few days we had the car back, which means they wouldn't be covered in the original claim... causing her to pay her deductible again.



And no, the air bags were never deployed. Not sure why or how they weren't. Maybe there wasn't enough force on the side impact.



It just seems like right now more issues keep coming up and the insurance company is just going to put them on us instead of realizing they were probably from the accident.


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PostPosted: Fri Dec 30, 2011 10:59 am   Post subject:   

If the VW dealership can certify that the damage was accident-related or caused by the repair shop, then Liberty will have to accept responsibility. If Liberty won't do that, you will have to hire an attorney and sue Liberty for unfair claims practices and bad faith in handling your claim.



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PostPosted: Fri Dec 30, 2011 9:08 pm   Post subject:   

Thanks for your input. I will also be looking into filing a claim with the PA Dept of Insurance in addition to legal action.



My only concern with all of this is that its their word against ours. Technically it COULD have happened in the 2 days we had the car back. But use some common sense a d these issues were 99.99% caused from a major accident. The auto body shop needing 3 tries to fix this car speaks volumes for their competence.



Thanks again!


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PostPosted: Fri Dec 30, 2011 10:29 pm   Post subject:   

You might also want to include the state agency that handles auto repair shop licensing. In CA, we call it the Bureau of Automotive Repairs, and it is part of the Dept of Consumer Affairs. They can help with the expert opinion as to whether damage is a maintenance-related or accident-related issue (and have you looked to see if VW has any "Service Bulletins" issued concerning the matter? It could be a manufacturer's defect, and the dealer doesn't want you to know so you will pay them full price.)



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PostPosted: Thu Jan 12, 2012 12:23 am   Post subject:   

So here is where we are with the situation...



The VW dealership has determined the damage to the steering column and air bags was from the accident and wasn't detected in the first inspection before the initial body work was completed. The total for damages is over $8,000 now and the car was now technically totaled to begin with.



My question is... Since the major body work has been completed, are they going to just fix this even though the car may be a lemon. If they did their job right to begin with they would have determined it to be totaled. Now they are putting $8.000+ into repairs for a car only worth around $9,000.


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PostPosted: Thu Jan 12, 2012 2:17 am   Post subject:   

Now you're probably going to have a fight on your hands. The vehicle may still be totalled as a result of the cumulative nature of the loss. The insurance company is more likely to reject your claim for the additional loss, in which case you may have to take your matter to small claims court, where you would sue the at fault party -- not the insurance company --for the additional cost to bring the car back to factory specs.



To prove those damages, you will either have to pay for the repairs yourself or simply bring a itemized statement from the dealer to court at the time of the hearing. The judge will be the finder/trier of fact and will determine who to believe. But at least no lawyers are permitted in SCC. The insurance company may petition to "remove" the case to a higher court, where lawyers will be involved, but you can try to argue against that, calling it an unfair claims practice -- unreasonably delaying payment of a claim and/or forcing insureds/claimants to litigate the claims they deny when the amounts ultimately recovered are substantially the same. In the higher court, if you can prove this, you can be granted compensatory and punitive damages for your trouble



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PostPosted: Sun Jan 15, 2012 9:47 am   Post subject:   

Quote:
Now you're probably going to have a fight on your hands. The vehicle may still be totalled as a result of the cumulative nature of the loss. The insurance company is more likely to reject your claim for the additional loss, in which case you may have to take your matter to small claims court, where you would sue the at fault party -- not the insurance company --for the additional cost to bring the car back to factory specs.




Who are you referring to as the "at fault party" ? If this was a first party claim, the insurer has a contractual obligation to restore the vehicle to the pre-loss condition at their option, of course, if they choose. And so it seems they did elect to pay for the loss in money and recommended the shop.



If the shop and the insurer had a drp agreement in which the shop agreed to hold the insurer harmless by repairing according to procedures and methodogy required by the agreement, the shop may very well have to pay for the damages as the insurer relied on them for their expertise?



If you have examined many of these one sided DRP agreements, the insurer bears no risk and demands the shop accept all the liability. Some of the language implies that the repairer should not proceed with repairs when it becomes aware that the repairs might exceed the total loss threshold of the state.



I have personally inspected a vehicle where the shop and the insurer collaberated to hold the repair costs down once it became apparent that the vehicle should have been totaled. The shop was attributing and billing accident related damage under warranty coverages by the manufacturer. What a tangled web we weave when we practice first to deceive. I am not sure who bought the car back and swept the problem under the rug, but I suspect the vehicle I examined wound up on the DRP dealers used car lot. It was not a very neighborly thing to do by the insurer or the shop.



An attorney may wish to take this case on contingency as this may fall under the triple damages rule in your state for punitive damages to the insurer for acting in bad faith. Max, could this be a case for vexatious delay by the insurer as well


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PostPosted: Sun Jan 15, 2012 10:01 am   Post subject:   

Quote:
Upon getting the estimate from a Liberty Mutual recommended body shop (mistake #1), we were told the car was slightly UNDER being totaled so the repairs would be completed. No big deal, we loved the car and weren't looking for a check. As long as they were able to complete the repairs to a satisfactory level.




Are you saying taking advice from the very people (insurer who has a profit motivation to cost contain expenses) who owe you money (indemnification) is bad advice? Did you feel the shop was not advocating for your best interests but instead that of the insurer whom they held an agreement with? What type of remarks did the shop make in regard to not being able to make those decisions and did you feel that the shop and the insurer colluded in anyway do prevent you from obtaining full indemnification which would have placed you in the positon you held prior to the accident? Isn't this the marketing that insurers promise? Trust us? We're on your side! We'll get you back to where you belong! You're in good hands! Like a good neighbor! We've got you covered! to name just a few of those warm fuzzy promises made on TV.


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PostPosted: Sun Jan 15, 2012 9:32 pm   Post subject:   

Quote:
Who are you referring to as the "at fault party" ?


Without pursuing the path to bad faith litigation against the insurance company, the proper party to sue for the necessary repairs to the vehicle is the insured vehicle owner, not the insurance company. The insurance company has merely denied the claim for additional damages -- at this point, that's neither here nor there.



You could very well be right about the collusion between the insurer and its DRP, as well as the bad faith negotiations. It's up to the claimant to decide if he wants to pursue that path. If he doesn't, well, in order to recover his additional damages, after being denied by the insurance company, he sues the at-fault party to the original accident. He has no claim against anyone else, including the DRP.



When he sues the at fault party, that party may choose to file cross-complaints against his insurance company and the DRP, which thrusts the matter to a whole new level, as you suggest. If the at-fault party does not do this, and subsequently loses at trial, then his insurance company is obligated by its contract to indemnify him.



If the insurance company refuses to do that, then the at fault party now has an action against his insurance company, too, for breach of contract. Of course, he has to give them an opportunity to defend him in the earlier trial, but in small claims court they cannot do that. It would require them to remove the case to a higher court, which then exposes them to the vexatious litigation scenario you suggest.



That's why I also said, "Now you're probably going to have a fight on your hands." Everyone else will be point fingers at each other. The DRP at the insurer, the insurer at the DRP, the insured at his insurer, the claimant at everyone else. With all that finger pointing going on, some judge, possibly even a jury, will end up caught in the crossfire. And the inevitable winners are the lawyers.



Doing whatever is necessary to avoid such litigation is, in a case like this, the best course of action, in my opinion. Mostly because the bad faith and other charges against the insurance company and/or their DRP, while possibly there, will requires a lot of effort to uncover and prove.



Quote:
If you have examined many of these one sided DRP agreements, the insurer bears no risk and demands the shop accept all the liability. Some of the language implies that the repairer should not proceed with repairs when it becomes aware that the repairs might exceed the total loss threshold of the state.


I haven't, so you're probably in a much better position to know, and I would not dispute what you're saying at all, because those kinds of things have previously come out at trial.



I know we're not at odds on this. I'm just looking at it from the least costly path to pursue.


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PostPosted: Mon Jan 16, 2012 12:11 am   Post subject:   

Quote:
Without pursuing the path to bad faith litigation against the insurance company, the proper party to sue for the necessary repairs to the vehicle is the insured vehicle owner, not the insurance company. The insurance company has merely denied the claim for additional damages -- at this point, that's neither here nor there.




I guess I got detoured because I was unaware of any at fault party other than the first party insured. Unless they found the party that owned the bumper that was in the middle of the highway, I thought this was an issue of first party only. And since one can not sue themselves I couldn't see where you were going with your explanation.


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PostPosted: Mon Jan 16, 2012 9:56 pm   Post subject:   

Guys-



Thanks for all the dialog.



This is infact a first party issue. The accident was caused by no other driver than the other who left the bumper in the middle of the highway (probably from a tow truck im assuming). Luckily a witness stopped with us after the accident and vouched that it was no ones fault outside of the bumper being in the middle of the road. We were simply driving with the speed of traffic and in no way could avoid the bumper.



Right now my girlfriend received her car back. The additional repairs were completed by the VW dealership and were claimed by the insurance company under the assumption of "customer service related" and happening "Post-Accident." Essentially, they are taking the responsibility but don't want to claim these additional repairs as part of the accident as it would most likely retroactively put the car over the totaled value.



You may have noticed I said before that the VW dealership determined the issues were without a doubt from the accident. Well Liberty came back the next day and said they had heard no such thing and would keep the repairs as "Customer Service Related." We then called the VW dealership back and they stumbled around it and denied ever saying they were from the accident. COLLUSION?!?! I think so, but it would be tough to prove.



My opinion of the car now is to see the fair market value and possibly sell it. The car, if repairs were done correctly, should be worth in the $8,000-$9,000 and the remaining loan is only for about $3,000. The inherent risk of something happening down the line with the possibly diminished life of the car seems like a big one to take.



Feelings?


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PostPosted: Tue Jan 17, 2012 2:21 am   Post subject:   

Quote:
Quote:

2.) Isn't it negligence from the original auto-body ship that they returned the car to us with air bags that weren't functioning and a damaged steering column.




At this point you need to be communicating with both your insurer and any other party in writing only. It is easy to change your story if it is not documented. I typically document and take a picture of the instrument panel lamps before beginning repairs to indicate which indicator lamps are showing faulty engine, srs, antilock brake,etc.



It is not uncommon for european air bag lites to set a code and indicate a problem post repair. I had a volkswagon beetle that the air bag restraint lamp went off two weeks after the repair. Turns out it was a faulty seat belt restraint setting the code. If your brakes locked up and jarred the seat belt it could set off a latent code or if you transmitted body energy into the column after an impact, it could set off a latent code.



I would ask the insurer to formally deny the coverage in writing and the shop to state in writing why they changed their tune and if it was influenced in anyway by the insurer. When people don't put things in writing, I would begin to challenge them. I would ask the shop if this went to trial and an attorney subpoenied them, what would his answer be for changing his diagnosis. I would file a formal complaint to department of insurance and ask them to intermediate as it is a first party contract issue. Then if you do not get satisfaction, then you should consider suing them in small claims court.


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