First accident with another driver...

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Latest post Fri, Apr 8 2016 6:20 PM by adjuster jack. 6 replies.
  • Thu, Apr 7 2016 6:09 PM

    First accident with another driver...

    For legal aspects of this situation, I live in New York.

    My wife was driving on the highway and avoided an accident with other cars during a snow storm. She came to a complete stop, but unfortunately she ended up getting rear ended in our van. Our insurance company called the other driver's company and they are admitting full fault for the accident. My wife also is suffering from (legitimate) whiplash. She was treated the day of the accident, and two days after. She's on medication and lost a week of work.

    The back end of our van is quite messed up. The tailgate, bumper, back left panel is cracked. It pushed everything forward and I believe we have to replace the cargo floor pan. Looks to be a bent frame in the rear pushing into the gas tank and muffler. The collision also caused damage to the front right fender / mirror area.

    So, the other company admitted fault. We decided to put a claim in through their insurance company. Couple of questions...

    We live in a no-fault state. Therefore, we can only re-coup costs for repair of our vehicle + diminution of value, correct? We cannot claim any other losses through the other company?

    Medical bills will all come out of our PIP. We cannot claim any pain / suffering amounts caused from this unless it was a serious / permenant injury as defind by NYS law, correct?

    The other insurance company is coming out to look at our vehicle. Should we be present for this inspection? I'm worried that they will simply try to fix it very cheaply and 'ignore' certain damages simply to save money. We'll have our own independent shop give us an estimate as well, however we're kind of at the mercy of what the othe comany decides it 'wants' to pay / do, right?

    As far as diminution of value... I've heard that's hard to get included in the settlement. If we get several dealers to provide a $$ amount they would accept less because of the accident, would that suffice? Now, what if the vehicle already had an accident recorded prior to this accident (it was a rental with 1 accident when we bought it). Would that previous accident affect our current claim for diminution off of this accident?

    Thanks!

  • Fri, Apr 8 2016 10:52 AM In reply to

    Re: First accident with another driver...

    Two quick comments from a non-lawyer from a different state:

    One, my brief online research into New York State no-fault car insurance suggested that the no-fault law is only about personal injury and has nothing to say about vehicle damage.

    Second, if your vehicle was severely damaged it is likely that they will declare it "totaled" and simply pay you the fair market value of the vehicle.  You could try looking up your vehicle's value on Kelly Blue Book, NADA, and Edmunds and asking your mechanic what his seat-of-the-pants assessment is.

     

     

  • Fri, Apr 8 2016 12:10 PM In reply to

    Re: First accident with another driver...

    tombedorchestra:
    We live in a no-fault state. Therefore, we can only re-coup costs for repair of our vehicle + diminution of value, correct? We cannot claim any other losses through the other company?

    Right

    tombedorchestra:

    Medical bills will all come out of our PIP. We cannot claim any pain / suffering amounts caused from this unless it was a serious / permenant injury as defind by NYS law, correct?

    Here's the NY threshold right from the statute:

    Insurance Law § 5102(d) provides:

    "Serious injury" means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system, or a medically determined injury or impairment of a non permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less that ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

     

      

    tombedorchestra:
    The other insurance company is coming out to look at our vehicle. Should we be present for this inspection?

    Absolutely. It's your vehicle. Have a digital camera with you and photograph everything.

    tombedorchestra:
    I'm worried that they will simply try to fix it very cheaply and 'ignore' certain damages simply to save money.

    That, of course, is possible and anytime you aren't happy with their estimate you are free to either sue the driver and prove your loss in court or have your collision coverage take care of the repairs.

    tombedorchestra:
    we're kind of at the mercy of what the othe comany decides it 'wants' to pay / do, right?

    That's right. The other driver's insurance company is not your insurance company and owes you nothing until and unless a court of law says so and says how much.

    tombedorchestra:
    As far as diminution of value... I've heard that's hard to get included in the settlement. If we get several dealers to provide a $ amount they would accept less because of the accident, would that suffice?

    That would be up to the other driver's insurance company to decide.

    tombedorchestra:
    Now, what if the vehicle already had an accident recorded prior to this accident (it was a rental with 1 accident when we bought it). Would that previous accident affect our current claim for diminution off of this accident?

    Definitely, it's already got a prior diminished value because of the stigma of the accident on the record.

    The trouble with diminished value claims (while compensable under the law) is this:

    "Diminished value damages are completely speculative and improper.  You don't know if you'll ever sell your vehicle.  It might get totalled in another accident.  It might get destroyed in a fire.  If you do sell it, you don't know when you'll sell it.  You also don't know if the person to whom you sell it will make an effort to research the car's accident history.  You also don't know if your ultimate sale price is based on market conditions, the buyer's negotiating skill, or your desperate need for money. Accordingly, giving you something based on "diminished value" could amount to compensating you for damages you never suffer or grossly overcompensating you." (Comment credited to ca19lawyer2.)

    All you can do is figure an amount you want to claim, ask for it, and see what the response will be.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • Fri, Apr 8 2016 12:16 PM In reply to

    Re: First accident with another driver...

    One other comment:  it's not clear from your post here whether you/your wife have notified your own insurance company about this accident.  Your policy probably has wording that requires you to promptly report anything that could result in a claim, so if your wife has not notified them yet you should read your policy and do what it says.  Especially if you have un/underinsured motorist coverage (not sure if that applies in NY or not).

  • Fri, Apr 8 2016 2:08 PM In reply to

    • Kivi
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    Re: First accident with another driver...

    You don't say how old your vehicle is, but it does not look like it is particularly new if it had one accident on its record at the time you acquired it.

    I have to agree with Karen about the possibility that this insurance company will declare your vehicle a total loss on the basis that repairing it would cost more than its actual value at the time of the accident. There is no scenario out there that would give you more than the vehicle's actual value at the time of the accident. I hope you still are not paying on this vehicle and simply own it without any lien. So many people are "upside down" on their car loans.

    In particular, if this vehicle is seven or more years old, just concentrate on what you think the vehicle was actually worth at the time of the accident. A "bent frame" is a often a very difficult and expensive repair. If the frame is bent, many insurance companies likely would "total" an older vehicle.

    Even if you could convince the insurance company to allow something form "dimished value", all that may happen is that you make a stronger argument for just declaring the vehicle a total loss. 

    Be careful of what you pray for. Your prayers may get answered.

  • Fri, Apr 8 2016 5:27 PM In reply to

    Re: First accident with another driver...

    The vehicle is a 2014, so fairly new. It actually was in an accident prior to us buying it (it was a rental). There was an inspection done on it after we bought it at the mechanic said where the accident happened, there really should not have been an accident report even done on it (so super small of a dent and completely repaired in rear bumper). However, then we hit a deer a few months ago causing some more damage to a fender (non-reported).

    I took it to the shop today (of my choosing). I worked with this shop last time I needed a repair through insurance. It actually worked out great, he said the parts came in a little cheaper than estimated and he gave me some money back, and the work he did was great (didn't even look like any repairs were done).

    He told me today it probably won't be totaled. He said he works with insurance adjusters all the time, and that they have a particular process of doing the estimation (they go through it together and come to agreement). Does that raise any red flags to anyone? To me it seems more efficient. Yes the adjuster wants to not spend any more than he has to, but if they can agree on an estimation to start, the deal is just done.

    He also said that Chrysler is very particular about OEM parts. He said the insurance may write up aftermarket parts, but that Chrysler matches the price of the aftermarket and gives OEM parts to put on their vehicles. Again, red flag or is this true?

    Again, if this vehicle were totaled, I would not get what I need to pay off hte loan and get a new vehicle. It's a 2014, with an accident on the record, damage to front fender (from deer), plus this damage here. We really juts need to repair it and keep it, drive it til it dies.

    As far as Adjuster Jack gave the quote for "Serious" injury in NYS.... my wife is a musician. She said her neck / shoulder / back pain is beginning to get better which is great, but her shoulder is getting worse. If she cannot perform as a musician as she usually does for her job (for 90 days), then this would qualify as 'serious injury', correct? Now, if that's true... would the only way to gain compensation for this be to go through the courts and sue the driver at fault? Or would this open up 'pain and suffering' through insurance?

    Hopefully she heals quick and that is not needed. Just exploring all avenues so that I understand and am prepared for any option...

  • Fri, Apr 8 2016 6:20 PM In reply to

    Re: First accident with another driver...

    tombedorchestra:
    The vehicle is a 2014, so fairly new. It actually was in an accident prior to us buying it (it was a rental). There was an inspection done on it after we bought it at the mechanic said where the accident happened, there really should not have been an accident report even done on it (so super small of a dent and completely repaired in rear bumper). However, then we hit a deer a few months ago causing some more damage to a fender (non-reported).

    You appear to have your mind set on diminished value. You are getting ahead of yourself. There's nothing you can do about that until the car is repaired so put it out of your mind for a while.

    tombedorchestra:
    He told me today it probably won't be totaled. He said he works with insurance adjusters all the time, and that they have a particular process of doing the estimation (they go through it together and come to agreement). Does that raise any red flags to anyone?

    No red flags there. It's common.

    tombedorchestra:
    if they can agree on an estimation to start, the deal is just done.

    Not necessarily. The first inspection might result in an estimate but additional damage might be found during tear-down, at which time the shop contacts the insurance company and gets the adjuster back out for a supplement.

    tombedorchestra:
    He also said that Chrysler is very particular about OEM parts. He said the insurance may write up aftermarket parts, but that Chrysler matches the price of the aftermarket and gives OEM parts to put on their vehicles. Again, red flag or is this true?

    I have no clue. If it's true then you are fine. If it's not, and the insurance company writes it up for cheaper parts the burden will be on you to prove (not just say) that the cheaper parts are inferior to OEM parts.

    tombedorchestra:
    Again, if this vehicle were totaled, I would not get what I need to pay off hte loan and get a new vehicle.

    If you didn't buy GAP coverage and your vehicle has depreciated faster than the loan amortization, that has nothing to do with the claim. If there had been no accident and you tried to sell the car now and got less than the loan payoff that'd be unfortunate but there would be nobody to blame for it.

    tombedorchestra:
    It's a 2014, with an accident on the record, damage to front fender (from deer), plus this damage here. We really juts need to repair it and keep it, drive it til it dies.

    Or at least until it's paid off and the market value is low enough so that it won't make a difference.

    tombedorchestra:
    my wife is a musician. She said her neck / shoulder / back pain is beginning to get better which is great, but her shoulder is getting worse. If she cannot perform as a musician as she usually does for her job (for 90 days), then this would qualify as 'serious injury', correct? Now, if that's true... would the only way to gain compensation for this be to go through the courts and sue the driver at fault? Or would this open up 'pain and suffering' through insurance?

    Again, you're getting ahead of yourself. A lot depends on the nature of the injury, the diagnosis, what it will take to treat, etc, etc. After 90 days, if she still cannot work due to the injury, you are free to approach the other driver's insurance company with the claim and see how it goes. I don't know how that works in NY but my guess is that the insurance company will balk and you'll have to get an attorney and jump through some serious hoops to pursue a claim like that.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
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