car was rearend and now

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PostPosted: Thu Sep 06, 2012 8:26 pm   Post subject: car was rearend and now  

the other person insurance took blame and will fix my car how ever , considering i bought my car with orginal factory parts i request and i am bent to have the new parts being oem parts not aftermarket , however both his insurance and my insurance both say they have the right to use what ever parts they want, i happen to know for a fact that i would not be made whole if aftermarket parts are used on my car, if and when it came time to sell it, what are my rights on this

i am in califorina , should i get a lawyer involved , no one was injured , just my car rear end , im not asking for anything else but to be made whole again with orginal factory parts , i have estamtes and all , ive picked my repair shop , who wont use anything that i requested yet if they insurance company wants me to pay more thats again isnt making me whole pre accident ,so what are my options , this just happen on aug 31 2012 and its been a heck of a week dealing with both insurance companies


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PostPosted: Thu Sep 06, 2012 11:40 pm   Post subject:   

Every state is going to have case law on this. My guess is if your carrier and the other person's carrier state that they only need to consider Like, Kind and Quality parts, that it's allowed. What you mention about not being whole is really an issue of diminished value. This varies from state to state.



Max is going to know what that is in CA.



When you buy a car do you ask if every part on the car is OEM? What about filters, tires, shocks, etc? That is, who really made the fenders on your vehicle... the manufacture or some other factory?

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PostPosted: Fri Sep 07, 2012 1:51 pm   Post subject:   

There is legislation pending in CA concerning this. The new law would require insurers refrain from demanding non-OEM parts be used. Even if adopted into law, it would probably not apply to your claim ex post facto.



Currently, you have the right to demand factory OEM parts, but can be required to pay the difference between those and the non-OEM parts. In many cases, the price differential is not all that much more, so you may want to pay that additional expense if having OEM is important.



Either way, you can turn right around and file a diminished value claim, because the one thing to remember is that, even with OEM parts, your vehicle has been in a collision -- a fact that will follow the vehicle to the junkyard. And the OEM parts cannot make up for shoddy workmanship.



tcope is also correct -- a factory-new vehicle is a collection of parts that come from a variety of subcontractors, not one central factory.



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PostPosted: Fri Sep 07, 2012 5:40 pm   Post subject:   

well the car was certified when i bought it also have the car fax at the time i bought the car , factory warranty is in effect of the car , in the warranty booklet it states non oem parts will avoid my warranty so im stuck on this one . i will be trying to find some one who can file for the dimisioning value as quickly , as the car goes in next week for repairs , after chrysler corp takes a look at it. which is monday, as for the insurance doesnt matter since his insurance is taking responsiblity i did not sign a contract with them so they must use oem parts ,as the auto repair shop stated , so they are on the hook for orginal parts , thank you all for youre help


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PostPosted: Sat Sep 08, 2012 4:12 am   Post subject:   

Quote:
in the warranty booklet it states non oem parts will avoid my warranty so im stuck on this one
No, it does not say that exactly. What it states is that the factory warranty won't apply to those non-OEM parts. The manufacture of the non-OEM parts offers their own warranty... same as you had before (probably better).



Quote:
as for the insurance doesnt matter since his insurance is taking responsiblity i did not sign a contract with them so they must use oem parts


Odd that you say this as your post before says this:
Quote:
however both his insurance and my insurance both say they have the right to use what ever parts they want
Also, Max mentioned this:
Quote:
Currently, you have the right to demand factory OEM parts, but can be required to pay the difference between those and the non-OEM parts
I have little down that the state does _not_ require the insurance company to use OEM parts (only Like, Kind and Quality) but you can think what you like.
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PostPosted: Sat Sep 08, 2012 6:20 pm   Post subject:   

when i made the statement on both my insurance and his insurance at the time , wasnt sure if his insurance was going to take responsiblity , which they did , so this leaves my insurance out, since i did not sign the contract with his insurance company , by law they must use what i request , this is after talking to a attorney, since i did not buy thier insurance , the one who took responsiblty , so they must repair the car the way i want oem parts , not used , not after market , but what i require ,within my rights, now if i went with my insurance company yes they have the right to use what ever parts they want , i get it , but since its not my insurance company who is fixing it they have to fix it the way it was with oem parts , sorry but the attorney says so,at no cost to me since one it wasnt my fault two it is be pre accident conditon which even after fixing it wont be pre accident , so its a battle im willing to fight as it wont make me whole again , so thanks for the advice but i did go seek a attorney who gave me legal advice and my rights


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PostPosted: Sun Sep 09, 2012 4:17 pm   Post subject:   

Quote:
The manufacture of the non-OEM parts offers their own warranty... same as you had before (probably better).


Yep! We know this is true because you can go to AutoZone or O'Reilly auto parts and get "lifetime" warranties on brakes, rotors, CV joints, rack-and-pinions, struts/.shocks, and such. Why can't GM, Ford, Honda, Toyota, Nissan, Hyundai, Mercedes Benz et al. do the same?



Because they make their money selling you the parts to keep your vehicle running.



Quote:
i did go seek a attorney who gave me legal advice and my rights


But does he have the trial experience to prove what he's telling you in court? There is much precedential case law on "Like kind and quality" that weighs in favor of insurance companies. If there weren't, CA's legislature wouldn't be considering the legislation it has before it.



The attorney also knows that you will have to pay him for his services, win or lose, because this is not the kind of big bucks personal injury case that he can take on a contingency, knowing that the insurance company will offer a settlement just to avoid the time and expense of a trial, and he would get 30%-40% of that off the top (and often times more than the victim nets after medical expenses, conveniently forgotten by the attorney, are subrogated).



Enjoy your OEM parts, if you actually get them (make sure you ask for the boxes they came in to be sure that's what you got). There's little to suggest that non-OEM parts are inferior other than anecdotal stories perpetrated by the vehicle manufacturers who don't reap the harvest of repair parts dollars.


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PostPosted: Sun Sep 09, 2012 10:22 pm   Post subject:   

Quote:
since i did not sign the contract with his insurance company , by law they must use what i request , this is after talking to a attorney


You may want to have this "attorney" call the CA Dept of Insurance as it seems that the DOI has a difference of opinion when it comes to the law on this matter:



http://www.insurance.ca.gov/0250-insurers/0500-legal-info/0500-gen-leg al-info/auto-body-repairs-and-replacement-parts.cfm



"Regulations in California state that replacement parts are only permitted if the insurer can guarantee that the parts are equal in kind, quality, safety, fit and performance.



The California Code of Regulations Title 10 Chapter 5 Section 2695.8 (g) states:



(g) No insurer shall require the use of non-original equipment manufacture replacement crash parts in the repair of an automobile unless:



(1) the parts are at least equal to the original equipment manufacturer parts in terms of kind, quality, safety, fit, and performance;



(2) insurers specifying the use of non-original equipment manufacturer replacement crash parts shall pay the cost of any modifications to the parts which may become necessary to effect the repair; and,



(3) insurers specifying the use of non-original equipment manufacture replacement crash parts warrant that such parts are of like kind, quality, safety, fit, and performance as original equipment manufacturer replacement crash parts; and,



(4) all original and non-original manufacture replacement crash parts, manufactured after the effective date of this subchapter, when supplied by repair shops shall carry sufficient permanent, non-removable identification so as to identify the manufacturer. Such identification shall be accessible to the greatest extent possible after installation; and,



(5) the use of non-original equipment manufacturer replacement crash parts is disclosed in accordance with section 9875 of the California Business and Professions Code."



You may want to call this "attorney" back with the actual law concerning this matter and verify that he/she actually has some type of clue in this matter. I think you will find what most of us already know... personal injury attorney are 100% _clueless_ about property damage.



As you can see, it's 100% legal for an insurance company to use non-OEM parts in CA.



Quote:
sorry but the attorney says so


Well, then I guess that trumps CA law!



Quote:
so thanks for the advice but i did go seek a attorney who gave me legal advice and my rights


Guess again... he/she gave you their _opinion_ (and an incorrect one at that) about something that they have no clue about.



Just to make it clear... CA allows any insurance company to use Like/Kind/Quality (LKQ) parts as long as they meet certain criteria. LKQ can be used OEM or aftermarket.



Feel free to call that attorney and get some more free "legal advice". May I recommend that you see difference counsel if you need actual legal representation.
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PostPosted: Mon Sep 10, 2012 2:42 am   Post subject:   

Your attorney may very well be correct.

There was a court case in California that did successfully challenge an insurer on the use of a/m imitation parts. Just as in Missouri Smith vs American Family Insurance, American Family lost the case after appeals where expert testimony from engineers proved unequivocably that a/m parts were reverse engineered and failed in corrosion protection in tests. As a result of that decision, case law in Missouri set a precedent that where the Like, Kind, and Quality code or statutory requirement existed, a/m part were proven not to be equivalent. As a result of the precedent, it applies to all Missouri insurers where mandating a/m parts conflict with the LKQ code. We will soon be testing this in court. When I have provided vehicle owners with the information to present to their insurer, they have backed down from a/m parts and went out of their way to find any used part available if they could.



I am trying to get the name of the court case in California for you and will post it as soon as I can find it. Your attorney is likely correct. As I recall one of the parties in the case was Librella.



Offering lifetime warranties on parts do not make them equivalent and insurers can only guarantee that you will be satisfied with the fit. HUGE difference. Magnusson Moss Ferguson applies to warranties on parts and only the manufacturer can warranty or guarantee the part.



You could always repair the vehicle and pay the bill. The third party insurer would then have no say in what they were willing to pay for the repair as the invoice is the only thing that the court will recognize. Just because an insurer may claim that they could have had the repairs done cheaper and with a/m parts does not make what you paid for repairs unreasonable in the courts judgement.



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PostPosted: Mon Sep 10, 2012 4:37 am   Post subject:   

How about this one from just a little while ago:



http://arav3.timberlakepublishing.com/blog_home.asp?Display=1489



"Manassas, VA - Last week a California federal court dismissed the Perez et al v. State Farm Mutual Automobile Insurance Company et al case in which plaintiffs claimed that insurance companies had violated California’s antitrust statute and unfair competition. Of particular concern in the case, the plaintiffs' expert witness stated in submitted documents that with regards to six categories of aftermarket parts and four categories of salvage [recycled] parts there is at least a 25% probability that the use of these parts 'will lessen the quality of the automobile's repair as to safety, fit, structural integrity or mechanical functioning than [sic] would be experienced over the life of a high-quality OEM repair part"."

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PostPosted: Mon Sep 10, 2012 5:14 am   Post subject:   

I have to chime in on this, because tcope's excerpt tells only one aspect of the story (and it's not really the correct one). The very next paragraph completely overturns what tcope has put forth -- one of the problems we all face when we don't take the time to read an entire article or court opinion:



Quote:
The court dismissed the case on procedural grounds and noted that the plaintiffs’ expert testimony lacked an "articulated methodology for choosing which sources to rely upon" and was "particularly troubling, in light of evidence that the sources consulted may have been systematically skewed towards demonstrating non-OEM inferiority". The Court further noted that the expert witness "did not make any effort to seek out sources that would support a contrary view". The Court went on to find that this is precisely the type of methodology that is "biased toward a particular conclusion" and therefore "does not comport [ ] with dictates of good science".


Seems the plaintiff's expert witness wasn't quite the expert he thought he was.



But, this article wasn't even a recitation of the court's complete opinion, it was really a biased article from the Automotive Recyclers Association, which has its own vested interest at stake:



Quote:
For almost 70 years, ARA has represented an industry dedicated to the efficient removal and reuse of “green” automotive parts, and the proper recycling of inoperable motor vehicles. ARA members provide consumers with quality, environmentally friendly, low-cost alternatives for vehicle replacement parts. Today, ARA represents the interests of over 4,500 auto recycling facilities in the United States and fourteen other countries around the world.


Personally, I'm really getting tired of all this "green" and "organic" crap that people/manufacturers use to lead others to believe their "thing" is better than everyone else's.



"Green" auto salvage parts? What a laugh. Most of the ones I've seen have more of a rusty-colored tinge. And "environmentally friendly"? Makes my head hurt.



Personally, I could care less about which parts are used -- as long as everything is put back together and works the way it's supposed to. I'm more likely to buy after-market new parts than OEMs from the dealer simply because those union-made parts are seriously overpriced. Forcing insurance companies to pay for them will only increase the cost of insurance for consumers, and I'm no less upset about my auto insurance rates than the next guy.



tcope did the right thing earlier by quoting the CA insurance regs concerning auto collision repair. The state legislature's effort will overturn them to a certain extent if passed and signed into law. The legislation is an effort to mollify labor union interests that pander to the Democrat-controlled state government, because those OEM parts come mainly from unionized manufacturing plants.


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PostPosted: Mon Sep 10, 2012 1:53 pm   Post subject:   

Lebrilla vs Farmers is the case I was referring to in california. It was not overturned on appeal.



Max, if you had diamond jewelry stolen from your possession, you'd be happy to have it replaced with zirconium imitation?



Or perhaps if you had an expensive painting insured we could replace it with a print.



I suppose if I wanted to ensure that some parts be certified to be used in servicing a contract so that I could avoid paying for restoration of value, I'd create and put my money in a company that claims that the parts are equal. Oh wait, that's what capa does and is funded by insurers.



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PostPosted: Mon Sep 10, 2012 3:35 pm   Post subject:   

Quote:
Max, if you had diamond jewelry stolen from your possession, you'd be happy to have it replaced with zirconium imitation?



Or perhaps if you had an expensive painting insured we could replace it with a print.


Mike . . . I'm not saying a person shouldn't be entitled to OEM parts if they want them, and I certainly disagree with insurers who refuse to authorize OEMs and essentially demand only aftermarket replacements.



But your diamonds>cubic zirconium and original art>reproduction analogies are not apples-to-apples illustrations. Not even in the same ballpark.



A hood or a door panel is a piece of sheet metal -- it's not a diamond and it's not in the category of original art. Certainly there are different alloys and thicknesses, and LIKE KIND AND QUALITY generally governs that as a descriptor. If the original sheet metal is .030" thick and it's replaced with metal that's .020" thick, that's unacceptable to me on its face. An insurance company might say "Oh, it's only a 1/100" difference, but I recognize that as a 33% reduction in the amount of metal. So, no, I would not necessarily accept that.



But, then again, and this is a personal thing, cars are meaningless objects to me. They are boxes on wheels that transport me and my stuff around town. I don't care about Mercedes-Benzs, Porches, Caddys, Hummers. I would never buy one. If my car were to be banged up in a minor collision and needed a few pieces of sheet metal, I could care less if that came from Detroit or Dimsum, as long as it fits and can be painted to match -- because I would use the insurance company's recommended shop and hold them to their 100% satisfaction guarantee for replacement parts and labor.



Now, as to Lebrilla v Farmers, it WAS overturned on appeal. The original case filing was for certification of a class action, and the trial court denied certification of the class. On appeal, the CA Court of Appeals remanded the case to the trial court -- with no opinion as to the merits of the case, only stating that the trial court erred by not certifying the class. As a result, Farmers settled the matter without a trial for $17 million. "Damaged" policyholders received $40 for their crappy hoods and $20 for their door panels and other "narrow" subset of sheet metal parts.



And that's for the same reasons I outlined above. 030" sheet metal is not the same as .020" -- it falls outside the boundary of LIKE KIND AND QUALITY as required by law. If it is the same .030" thickness but cannot pass the same standard corrosion test, it is NOT LIKE KIND AND QUALITY.



If the only metal that can meet the standard is OEM from the vehicle manufacturer, so be it. The insurer is stuck. But in the matter tcope referred to, the court, in dismissing the case on "procedural grounds" -- which means it can be refiled to meet the proper set of procedures -- said of the expert witness' testimony -- he showed no methodology to prove his points. He was making broad assertions that there is no comparison between OEM parts and aftermarket parts (that non-OEMs are always inferior parts). I don't agree with that either.



The court was putting everyone on notice that mere anecdotal evidence is insufficient to prove this point. "Come back with hard science if you want to prove your case" is what the court was telling the plaintiffs, "or don't come back at all." And that position is in favor of the aftermarket crowd, not the OEMs.



The Farmers settlement has been described in this manner:



Quote:
"Farmers, under the settlement, is going to continue to be able to use CAPA certified parts in the repair of cars and trucks damaged in an accident, and that is one of the very major aspects of the settlement," [Farmers' attorney Jose] Allen said. "I don't know that there's much to say about the settlement beyond that."



Allen said he did not have any objections to the end result of the settlement. He did, however, object to the choice of words used to describe parts.



"They are non-OEM parts. We don't call them imitation parts. That's a word that the plaintiffs' lawyers like to use," Allen said.



Farmers will educate and train the claim specialists and the Circle of Dependability shops on the complaint process as outlined in the settlement.



"Speaking to body shops, the problems they run into (with certain CAPA certified parts) may lead to CAPA decertifying (those) parts. With the settlement, it requires Farmers to make sure that everyone is aware of the complaint process. (Body shops) can use that to make sure parts get decertified, and bring it to the attention of everybody," [plaintiff's counsel Timothy] Blood explained.




Cubic zirconium is an IMITATION diamond. A non-OEM diamond is something very different -- it's still a diamond.


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PostPosted: Mon Sep 10, 2012 6:21 pm   Post subject:   

Oh for pete's sake just write your brand name on with a freaken' sharpie if it's so damned important. That's what your OEM manufactorer does anyway. They don't make their own parts. They call people like PPG or something to patent and manufacture their so called OEM paints. And guess what? Since PPG hold the patents to the paint, they just use the exact same formula on it and slap a PPG lable on, and guess what? You have your aftermarket paint now. Same damn paint, and probably from the same batch. Look at PPG's website if you don't believe me! Ford makes windshields for Chrystler and I'm sure there's other business deals in the like, particularly when dealing with common foreign brand vehicles such as Honda or Kia. Why bother to import paint made in Japan when you can just pay an American company to make it here. All you have to do is slap your "Honda" label on it and charge twice as much. No annoying tarrifs or customs fees. And it certainly plenty of fools who buy into that whole "better quality" myth and hire lawyers who tell them what they want to hear.


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PostPosted: Tue Sep 11, 2012 2:01 am   Post subject:   

Crazy you is crazy man.



Materials used to refinish a vehicle at the factory is not even chemically close to what you can apply in the aftermarket or repair trades. Factory package paint only refers to paint packaged at the paint factory mixed in larger quantities. The manufacturer uses a thermal setting paint that requires baking of the paint that would melt your interior. Paint in the repair industry is air dried and chemically cured. Curing can be expedited by paint booths with gas fired heated air for quick dry times. Factory applied paint including undercoats are rarely over 3 mils thick. The mil film thickness of paint applied in the repair industry is seldom less than 6 mils including clears, bases, primers, and sealers.



An nationally known auto parts store sells a hub bearing built to oem specifications built by someone other than the oem. You can buy a hub bearing from the same store for considerably less that was reversed engineered just as aftemarket sheetmetal, but that bearing, even with a lifetime warranty, will likely last a few short years. A coil pack built in China will last 6 months before the plastic cracks allowing current to leak and engine start failure. Oh they will replaced the faulty part with one just like it, but they will not pay for the labor and you will be buying another in 6 months again. Or you could buy one built by the oem contracted manufacturer that will last 100,000 or more miles.



Aftermarket parts were intended to be sold as cost effective parts for people that could not afford or did not want to pay for quality. Aftermarket manufacturers are trying to equate a part that is reverse engineered with one that was manufactured by the original builder of the car and then claim they are equal in quality. Property insurance guarantees that the damaged parts must be equal to or of the same quality as the original part that was damaged. They simply are not.



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