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 Posted: Wed Sep 02, 2009 11:06 pm Post subject: was rear ended, the at fault party insurance is insufficient |
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Hello,
I was rear ended last week. No injuries but my car suffered big dents at the back. The insurance company for the guy who hit me has called me and verbally admitted they are at fault. They inspected my car and says it is totaled, but the value of my car is much higher than the property damage limit of their insurance. They have therefore asked me to use my own collision insurance first and then have my insurance company recover the costs from their insurance company.
Is this the proper way to handle this claim?
Thanks for any comments.
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greendeal
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| Posted: Thu Sep 03, 2009 1:39 am Post subject: |
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| Quote: | | Is this the proper way to handle this claim? |
Yes, and really the only way to handle it and get you back whole again. The only other option you would have is to file suit, get a judgement against their insured, then try to collect the balance....Your carrier will pay it, the at fault carrier 'should' front your deductible to you now...then your carrier will subrogate them, likely accept their low limit in repayment and call it a day...Unless the under insured guy has a lot of assets...Unfortunate, and yet another testiment about having sufficent limits to cover damage you cause...
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Lori
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| Posted: Thu Sep 03, 2009 4:24 am Post subject: |
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| The other carrier should not front the deductible as they should obtain a release in order to protect their insured. |
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tcope
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| Posted: Thu Sep 03, 2009 12:10 pm Post subject: |
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| Quote: | | The other carrier should not front the deductible as they should obtain a release in order to protect their insured. |
Correct...I should've said, If your carrier agrees to accept the policy limit as full subrogation payment, (and they likely will) they can front your deductible.
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"Never, never be afraid to do what's right, especially if the well being of a person or animal is at stake. Society's punishments are small compared to the wounds we inflict on our soul when we look the other way." Martin Luther King Jr. |
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Lori
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| Posted: Thu Sep 03, 2009 12:44 pm Post subject: |
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| Quote: | | If your carrier agrees to accept the policy limit as full subrogation payment, (and they likely will) they can front your deductible |
Personally, I'd still not make any payment until I had a release in my hot little hands. An adjuster could make a payment before obtaining a required release but they'd be sticking their necks out in doing that. |
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tcope
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| Posted: Wed Sep 09, 2009 12:10 am Post subject: follow-up |
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Hello, thanks for all the comments so far.
I have now talked to both my own and their insurance agent. Both agrees that the other guy is 100% at fault but he is underinsured. It appears I have to up front the deductible myself and wait until my insurance company collects money from their insurance before they reimburse my deductible. Based on the comments so far this is the normal procedure.
There is only one more question I have and it's regarding the cost for the rental car that I'm paying for myself so far. My own insurance does not cover rental costs. The other party's insurance says in principle they are liable for it but since their policy limit is already exceeded by the car damage, I won't get compensated for it. Is this correct that I'm basically screwed over rental costs?. Do I still have the option of going to small-claims court to sue the other driver directly for the cost of the car-rental after my own insurance have compensated me for the damaged car?
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greendeal
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| Posted: Wed Sep 09, 2009 12:55 am Post subject: |
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| Quote: | | Is this correct that I'm basically screwed over rental costs?. |
yep, unfortunately, | Quote: | | Do I still have the option of going to small-claims court to sue the other driver directly for the cost of the car-rental after my own insurance have compensated me for the damaged car? |
Well that will get sticky...talk to your adjuster about this...see if there isn't some way they can exclude this portion of your damages, (should be able to since they cannot release this damage since they didn't pay for it). Or better yet, specifically address this damage (rental) in the release. That is to plainly lay out that you are NOT releasing their insured from this 'part' of your damage, since you had no coverage for it.
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Lori
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| Posted: Wed Sep 09, 2009 1:34 am Post subject: |
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| Quote: | | The other party's insurance says in principle they are liable for it but since their policy limit is already exceeded by the car damage, I won't get compensated for it. |
They are 100% incorrect. It's all your loss, even what your carrier paid. What should happen is the other carrier pro-rates their payment to your carrier for what they paid and to you for what you paid. That is, if the amount your carrier spent is 80% of the limit and the amount you spent is 20%, then you are both paid that portion of the amount you spent.
If they did not do it this way they would be leaving their insured open for you to file suit against their insured... which is exactly what they cannot allow to happen.
For them to think they don't owe you for what you have personally spent tells me that the adjuster does not have a clue. |
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tcope
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| Posted: Wed Sep 09, 2009 10:55 pm Post subject: Keep Documentation |
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| I really enjoyed reading about this topic. I did have a client who did go about their (not at fault) collision this way. Their old insurance company ended up noting it as not at-fault but reported to clue as an at-fault accident. Make sure you get documentation stating the accident to be not-at-fault for your records in case it ever comes up again... |
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ColeJustin
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| Posted: Wed Sep 09, 2009 11:19 pm Post subject: |
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| Quote: | | Is this correct that I'm basically screwed over rental costs?. |
| Quote: | | yep, unfortunately |
I don't agree as I don't think the OP signed a release. I don't think the OP's carrier has signed a release yet either but that would not matter.
The OP suffered a loss that the other carrier needed to compensate for. The OP's carrier assumed right of recovery for some of the OP's loss but not all of it. This does not change the amount owed by the other carrier. The difference now is that the other carrier needs to pro-rate their limits to the other carrier _and_ the OP. The loss amount is what it is from the start regardless of who pays for what and how much. |
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tcope
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| Posted: Thu Sep 10, 2009 12:30 am Post subject: |
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| Quote: | | The loss amount is what it is from the start regardless of who pays for what and how much. |
Agreed, but his carrier has no subro rights at all for his rental expense. I wouldn't think that the clmt carrier would release one nickel (given they have a limit issue) without a PD release. Would you pay your limit out knowing it was less than the claims value without a release?
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"Never, never be afraid to do what's right, especially if the well being of a person or animal is at stake. Society's punishments are small compared to the wounds we inflict on our soul when we look the other way." Martin Luther King Jr. |
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Lori
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| Posted: Thu Sep 10, 2009 12:35 am Post subject: |
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Just as if there were two people with losses I'd do the same thing. I'd secure a release from the OPs carrier for the amount that they paid and a release from the OP for his/her amount (pro-rated up to the policy limits).
If the at fault carrier were to only pay the OP's carrier, the OP could file suit against the at fault person. The at fault person's carrier would have failed to defend their insured and would then be at risk of a bad faith claim from their insured. |
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tcope
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| Posted: Tue Nov 24, 2009 4:59 am Post subject: 2nd follow-up |
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Hello, I'm the OP. I just wanted to thank everybody for sharing your expertise. It's been three months since the accident and I have now finally received a final settlement offer from the at-fault party.
They will pay me ~10% of their limit for my rental cost and ~90% of their limit to my insurance company. This all look alright to me, but before they pay they want me to sign this general release form that waives everything including Section 1542 of the Civil Code of California.
Should I just sign it? Is it worth the trouble to try to negotiate with them to preserve my right to sue them in the future as described in Section 1542?
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greendeal
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| Posted: Tue Nov 24, 2009 5:55 am Post subject: |
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| You can tell them that you are not going to sign a release waving Section 1542 and see what they say. My guess is that they will not issue payment unless it's included. It's worth asking. |
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tcope
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