Do they have sovereign immunity over ME?
September 7, 2014 5:20 AM   Subscribe

The town vehicle hit my car. They are claming soverign immunity over the insurance company. The insurance company says I can file a claim as an individual. It looks like the deck is stacked against me. Should I file and how should I do it?

Earlier this summer a town bucket loader backed into my almost new car causing extensive damage. After a long delay, the entity that handles claims against municipalities in my state replied to my insurance company, saying they had sovereign immunity over the insurance company and it was my fault for not getting out of the way. My insurance company says I can file a claim as an individual and try to get my deductible, rental car fees and diminished value claim. I think I would need a lawyer to do this. Is it worth additional time and money to purssue this when they are trying to deny they were completely in the wrong? Do I even have a chance?
posted by Xurando to Law & Government (14 answers total)
Do what your insurance company is urging you to do: file that claim. No need for a lawyer --- at least not yet! --- let your insurance company and their lawyers go after the town.
posted by easily confused at 5:25 AM on September 7, 2014 [12 favorites]

Yes, file the insurance claim! You don' t need a lawyer to file an insurance claim, that's what the reps are for. They're encouraging you to file a claim because they've covered it so far, and they're going to go after the town's insurance to get their money back.

Although I am a lawyer, I'm speaking from personal experience from that one time a city bus rear-ended my car and totaled it. The city paid almost immediately; however, this took place in a no-fault state. I checked and Vermont is not a no-fault state, so your experience will likely be different, so definitely call your insurance agency. Do this ASAP, like today, since claims through your insurance company are likely to expire after a certain amount of time passes.
posted by mibo at 5:41 AM on September 7, 2014 [5 favorites]

Yeah, I would do whatever the insurance company wants you to do here.
posted by J. Wilson at 6:33 AM on September 7, 2014 [1 favorite]

Accident attorneys are EVERYWHERE.

I would call 5 or 6 on the phone and telephone interview them, see if they offer to take your case or not.

Then, I would file the claim either through the insurance company, or with a lawyer's assistance.

I would not listen to either just my insurance company on this, nor The Green.

Your question is stated funny and kinda unclear. I think I know what you are asking about because I have heard of this situation before, but I have zero idea what the real answer is here.

I do know insurance companies are always out to do whatever is easiest/cheapest for them, even if it screws you over (why isn't this going to be 100% covered under your uninsured motorist coverage? Why is the insurance company urging you to go after the city on your own? That's not why you pay for insurance!!)

I think the answers here do not understand the perameters of your question. You need real outside legal advice. Get going!
posted by jbenben at 7:05 AM on September 7, 2014 [4 favorites]

PS - I think the answer might end up that you go after your insurance company to pay all damages under your uninsured motorist policy, and then they can turn around and try to recover from the municipality.

Incidentally, are there any business nearby the accident scene that may have captured the accident on surveillance cameras? You should walk around that part of town and inquire! It might really help your case overall.

To me, this accident should be under your uninsured motorist policy, which works entirely different from your liability and total coverage. Essentially, your insurance company takes the role of the other party's insurance and 100% covers you - sadly, your insurance company then becomes your adversary because they are on the hook for the cost.

This is not legal advice, but it is my understanding. You need advice from lawyers in your jurisdiction. Your insurance company is telling you what is best for them, not what is best for you.

It's not scary to call lawyers on the phone, tell them your case, and see if they are willing to take your case. It's a big part of their job.

Also, you don't pay them if you hire an attorney, they take a portion of your settlement. It's usually worth it. Believe me.

You can do this. Good luck.
posted by jbenben at 7:19 AM on September 7, 2014 [1 favorite]

It appears to me the insurance company is actually just suggesting that OP file a claim for the damages NOT covered by the policy, e.g. deductible, car rental, diminished value (presumably any reduced value after repairs are made). This would be well worth filing the claim. If the claim is denied then depending on the total amount sought it may or may not be attractive to a "contingency fee" lawyer or worth hiring an "hourly fee" lawyer.
posted by uncaken at 7:43 AM on September 7, 2014

The town is "claiming" sovereign immunity. If they can get away with you believing that, it doesn't matter whether they're right or not.

This is what lawyers are for: attacking bullshit with law.
posted by IAmBroom at 7:48 AM on September 7, 2014 [4 favorites]

A friend owns a small business in Raleigh, NC. One day a city vehicle lost its brakes and careened down a hill and through his front wall. The city wound up paying to replace the entire wall.

Cities don't get to just fuck up peoples' property willy-nilly with no accountability.
posted by showbiz_liz at 8:00 AM on September 7, 2014 [3 favorites]

"It appears to me the insurance company is actually just suggesting that OP file a claim for the damages NOT covered by the policy, e.g. deductible, car rental, diminished value (presumably any reduced value after repairs are made)."

That's not how this works. If the municipality is claiming immunity, than ALL damages should have been covered under the OP's uninsured motorist policy.

"This is what lawyers are for: Attacking bullshit with Law."


Note To OP: filing claims in one direction may prevent you from filing a successful claim in the future down a different path. Consult with several attorneys before committing to a strategy.
posted by jbenben at 8:35 AM on September 7, 2014 [2 favorites]

Let's clear some things up:
My insurance company says they have done all they can do. I am not 100% sure about this. Some one is responsible for my diminished value claim (legal in Vermont), it might be the insurance company..

The total amonut we are talking here beyond what the insurance company paid is $ 3000.00. I'm not sure a torts lawyer would take this.

The municipal insurance entity is impossible to work with, including blaming me for their accident. They refused to even talk to me. I'm sure it's part of their strategy. I don't really want to deal with them and to that extent a lawyer looks good.
posted by Xurando at 12:00 PM on September 7, 2014

My city, alas, has a policy of denying every claim -- Every. Single. Claim. Even when a street sweeper got away from the driver and almost hit a guy standing in his own garage. He filed a lawsuit, it went to mediation, and they settled prior to trial.

I'm sure it's part of their strategy.

Of course it is. They don't want to pay. What incentive do they have to talk to you? It's the same reason that Social Security initially denies virtually every disability claim (more get through the second and third stages of appeal), or that health insurance companies look into tactics like strategic denial. The phrase in the industry is "deny, delay, defend". They want you to give up.

Just the act of getting a lawyer, though, shows you're serious.
posted by dhartung at 2:01 PM on September 7, 2014 [1 favorite]

So, we start with the premise that the King can do no wrong. Thus, under the English common law system the Crown was immune from suit for anything.

That concept was imported into the US system when we left the commonwealth but kept the English common law. In every jurisdiction I know of it has been abrogated or lessened to some extent.

For example, if the Federal government committed a tort (civil wrong like damaging your car) that would be covered by the Federal Tort Claims Act.

In the States I practice in there is a state level similar act. For you to know - BE CAREFUL. The State can impose requirements not found in claims among individuals. In Oregon you must present a "notice" of claim to the right governmental entity within 180 days or your right to sue lapses, even though the statute of limitations on a claim like you describe would be 2 years in Oregon.

Soo, either do some research pronto, OR call a lawyer in the relevant jurisdiction to find out if you need a lawyer. Insurance companies are not going to advocate for insureds. You must do this yourself.

Good luck
posted by BrooksCooper at 4:13 PM on September 7, 2014

I am a lawyer that works exclusively in this field, but, alas, not your lawyer.

A couple of points that need to be made. First, uninsured motorist coverage will not apply to property damage and that appears to be the type of damage that you suffered in this accident. Also, a municipality is never going to be deemed to be uninsured, at least not in any of the countless insurance policies that I have reviewed.

Second, any analysis of whether the town can claim a defense of immunity when a loader backs over your car is going to depend exactly on the nature of the statute governing immunity, but in most states, the negligence of a state or town employee in operating a loader so as to cause it to back over another vehicle is going to be seen as a ministerial act such that sovereign immunity will not be a defense.

I suggest that you talk to a lawyer in your state. In a case like this, most lawyers will give you a free initial consultation. Whether it makes sense to hire a lawyer will depend you the value of the claim. You probably won't want to retain a lawyer if your claim is around $3000 since it simply won't pay, but it won't hurt to at least casll some law firms.

Your jurisdiction may have a small claims court that you can use to assert your claim and you probably won't need a lawyer to do so. Call a local lawyer, run the facts past her to assess the immunity issue and then file a claim in small claims court if the value of the claim is such that it doesn't work out to hire a lawyer.

Also, there are usually some pretty strict time limits on filing a claim against a governmental entity and it may require some special notices or steps to be taken. As about this when you call the lawyer.

Don't delay.
posted by mygoditsbob at 8:04 PM on September 7, 2014 [3 favorites]

mygoditsbob has it. Also, when you consult the attorney, ask about whether your insurance company did everything it was supposed to do under the terms of the policy. I dont see anything that stands out, but just for a belts-and-suspenders approach, you might as well inquire about that too. It sounds like you had comprehensive coverage that paid you directly in a disputed claim. Usually, the insurance companies figure out who was at fault and work it out because both drivers want it resolved one way or the other. But with your town, they are acting as if they are self-insured and have no incentive to resolve without being forced by litigation (or credible threat of litigation.) But again, mygoditsbob had some good thoughts on this matter--especially that time is of the essence due to deadlines that may exist that apply to suing a governmental entity. Best of luck, friend.
posted by DB Cooper at 9:29 PM on September 7, 2014

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