Do I need a lawyer for my totaled car accident while parked?
April 26, 2015 12:01 PM   Subscribe

My husbands car was hit while parked. The other guys insurance company has deemed the car a “total loss”. It is almost 3 months since the accident and insurance claim. The insurance company continues to delay resolving this and we have no idea where to go from here.

We also are concerned that they will not offer anything close to the value of the car and associated expenses. The car was a 2008 Yaris in very good condition, no accidents and only 60K miles on it. We also had to deal with the storage fees and car rental costs, up front. They haven’t reimbursed any of that.

Would it be worth it to hire a lawyer? What kind of attorney should we be looking for? Most seem to be specific to personal injury cases. We are in Queens, NY.
posted by mokeydraws to Law & Government (16 answers total) 3 users marked this as a favorite
Your insurance company should be negotiating this on your behalf. It's part of what you pay them for.
posted by Lyn Never at 12:06 PM on April 26, 2015 [16 favorites]

Information about how to find an attorney, including state-specific resources, is available at the MeFi Wiki Get a lawyer page. It may be worthwhile to at least consult with an attorney about your options, and it sounds like you are on the right track by looking for a law firm that focuses on personal injury, because they likely have experience with issues related to insurance companies.
posted by Little Dawn at 12:17 PM on April 26, 2015 [1 favorite]

This is what you pay your car insurance company for, they should be negotiating all of this on your behalf, definitely give them a call.
posted by julie_of_the_jungle at 12:29 PM on April 26, 2015 [2 favorites]

Professional auto insurance claims adjuster here, who handles both legal liability and Bodily Injury. I am not your insurance claims adjuster and this is not legal or insurance claims advice, it is insurance information.

Have you been given a reason for the delay?

First, has the other guy's insurance company confirmed that they not only definitely have coverage under the policy for the date of this accident (even if he had an active insurance policy, there could be a million and one reasons - under the insurance policy contract - why they could still be investigating coverage at this time, including issues like if the driver was excluded, or if the car was not on the policy but may still qualify as a non-owned or temporary substitute auto).

Second, have they told you "Yes, we've accepted liability (responsiblity) for the damages he caused in this accident?" Because doing an estimate on your car and telling you that it's a total loss does not mean that liability has been accepted. A lot of companies will go ahead and do the estimate, just to get that information on file and avoid any further delay, while they continue to investigate coverage and/or liability.

Third, if the two items above have been satisfied, what does the company still need to get you or your bank (if it is financed) a total loss check?

Has the lienholder (bank/financer) given the auto insurance company the necessary paperwork, and vice versa? If your lienholder has the title, have they given it to the insurance company? If you have the title, have you given it to the insurance company? If you have a lienholder, are they going to be paid for the full balance of your remaining loan? If not, do you have GAP insurance (coverage that will pay off the rest of the loan if the total loss value is less than what you currently own on your car) through your lienholder, and if so, did you contact your lienholder about setting up a GAP insurance claim?

You also mentioned storage fees. You have a duty to mitigate your damages by removing a vehicle from storage ASAP, even while the insurance company is investigating coverage and/or liability, which they legally have up to 30 days to do and even longer as long as they put you on notice in writing and provide the reason. If your car was in storage for an excessive period of time, they may be deducting that amount from your total loss settlement. If this is the case, you may be able to negotiate down the amount with them. Have they discussed that with you?

Otherwise, as long as coverage is in force, liability has been accepted, and the total loss examiner has everything they need to process the claim, and you've given them your receipts for the tow/storage and it's reasonable (usually 5 days or less depending on the company) you should be getting that back.

You can look for an attorney, but it's few and far between that will represent you for a Property Damage only claim. They don't make any money off of it. New York state has a very strong Personal Injury legal culture, Queens especially, and not to be flat out rude, but 99.9% of the Personal Injury attorneys just don't have time for your Property Damage claim. That does NOT change the fact, however, that it is important and needs to be resolved. Also, I am NOT trying to dissuade you from using an attorney. You may find a traffic court attorney with enough knowledge and expertise that will be willing to handle this. I am just being realistic with you and letting you know it's not likely.

If you have Collision coverage with your own insurance company, and if you know the current location of your car, I would ask them to send out an adjuster and take over the reigns for handling the total loss. They'll need to communicate with the other guy's insurance company to make sure this is okay, and you should call the guy's insurance company asap to let them know if you're planning to ask your company to take over. Then, if you still don't understand what's going on or why there has been a delay, ask your insurance company's claims adjuster to find out what's going on and explain it to you.

I do not ever recommend asking your insurance agent to handle this on your behalf. Make sure you have an actual claim set up with your company, and speak with the assigned claims representative. Agents sell insurance policies. They are not claims adjusters. Sometimes, they file small claims on your behalf. But they are not trained (unless they used to work as an insurance claims examiner) in claims handling, coverage, or liability.

(Also, any attorney who tells you to say, 3 months after the accident, that you were actually inside the car when it got hit, that you were injured because of it, and are now treating for your injuries, etc is asking you to commit fraud. Don't do that. I say this because I've seen it happen. Rarely, but it can and does happen. Also, no insurance company is going to consider an injury claim if you don't treat until 3 months later. That's 3 critical months with no medical documentation to confirm what caused your injuries, the extent of your injuries, and how they affected you.)

If you have questions or want to get into the nitty gritty, feel free to Memail me.
posted by nightrecordings at 12:32 PM on April 26, 2015 [11 favorites]

Thanks for the great response @nightrecordings. I'm actually the husband (owner of the totaled car). I received various letters from the other guy's (liable owner of vehicle) insurance company - explaining the claim is still "pending investigation"... that a "liability decision will be made" and I will be notified by mail. This was the most recent letter, after the 2nd letter stating that my claim is "under review to determine the basis of percentage of negligence of each party to the accident". I've also spoken to customer support, the adjuster, the adjuster's supervisor multiple times by phone. They explained that they are putting together an offer amount, however as I dig through the letters - I'm not finding that language anywhere.

Of course the insurance company is a nightmare to deal with. Although I emailed them the bills and faxed it's still difficult to say if the adjuster actually has them. The only reason they've given about the delay (by phone) is that they're waiting on a statement from the insured policyholder. This was their answer when I called them on the phone for the past 3 weeks. It's the same thing every week.

I already spoke to my insurance company and they don't want anything to do with the situation as I'm not fully covered.

I totally get that I may have simply gotten a bad deal of cards in this situation. And to echo @nightrecordings words it seems like there are a lack of attorneys interested in this type of work. The local firms and lawyers only seem concerned about personal injury law - where the money is... for them.

I'm just wondering - since the car has a blue book value around $7,000 and with storage and rental fees around $3,000... should I simply accept an offer for $5,000 if they even come around with that eventually. I don't want to accept that or much less, but I'm afraid I may have to.

It feels like this insurance company can pretty much do whatever they please.
posted by adamhenson at 1:17 PM on April 26, 2015

And to add more info - we're pretty much at the mercy of the insurance company. We don't have a car now. We haven't had one since the accident - about 2.5 months ago.

I'm trying to decide if I should keep renting cars and sending the insurance company bills, or try to live without a car until this is all resolved. This seems like an unreasonable amount of time and I'd like to enforce it, but my hands are tied. That's the only reason I'm thinking about pursuing legal help.
posted by adamhenson at 1:47 PM on April 26, 2015

Please do not rely on legal advice (e.g. whether you have a duty to mitigate in these specific circumstances) from AskMe. Many personal injury attorneys offer free consultations as a marketing tool, and you may be able to find attorneys who will talk to you about your claim, give you legal advice about what a reasonable settlement amount may be, and whether you have potential claims for insurance bad faith. I encourage you to at least try to find an attorney for a consultation and to only rely on advice from an attorney for your legal issues. You may want to start with the NYC lawyer referral service, because they may be able to help you find attorneys offering consultations and advice.
posted by Little Dawn at 1:48 PM on April 26, 2015 [1 favorite]

Thanks @Little Dawn. We're really just trying to get advice on where to start. What kind of lawyers handle these cases. I do appreciate the link. And I have done some searches online. Just trying to find someone who has experienced this, who can offer advice on where to start.
posted by adamhenson at 1:52 PM on April 26, 2015 [1 favorite]

adamhenson - Okay, that sheds light on the situation. Thank you for the additional information.

AGAIN, THIS IS INSURANCE INFORMATION. NOT INSURANCE ADVICE, AND CERTAINLY NOT LEGAL ADVICE. As I said up front, I am a professional in the insurance field. I am writing all of this to give you a broad overview of a range of possibilities, to help understand what may or may not be going on. I cannot give you insurance advice because I am not your insurance adjuster and I do not have access to the same information that they would. I cannot and would not attempt to give you legal advice because, of course, I am not an attorney. Others can argue about whether or not what I say is right or wrong, but I wouldn't feel compelled to go into the level of detail that I am if I didn't have some inkling of what I'm talking about.

Some general insurance information:

When you purchase an auto insurance policy, you are entering into a contract.

Every auto insurance policy contract has a clause stating that you, the policyholder, are required to 1) give notice of the accident/claim as soon as possible and 2) cooperate with the insurance company's investigation of the claim by providing a statement about what happened in the accident, and providing any additional information or documentation that may be required to complete the investigation.

Speaking speculatively: The jerk who hit your car hasn't called back his insurance company. Even if they've spoken with the owner of the car/the person who is listed as the named insured on the policy (not sure if the owner/driver are the same or not, so I'm just giving you a broad explanation), if the driver is a different person than the owner/named insured, they have to make contact with that person to get his or her version of what happened. It's contractual. They can't break that contract.

However, Mr. Jerk (apologies, but I don't know his name and we're speaking speculatively here, remember?) hasn't called back the company. If the insurance company is doing what they're supposed to do in this situation, they have mailed him what is called a Reservation of Rights. This is an official notice advising him that there is a question of coverage under the policy, and what he needs to do to resolve the coverage issue. In other words, in this scenario, it's to let him know that he's not holding up his end of the insurance contract and that he better do that right now or they'll review to disclaim coverage to him. (Note: It doesn't matter if he isn't listed as a driver on the policy. If he was driving their insured's car and expects to be covered for any damage he caused while operating the car, he has an obligation to comply with the terms of the policy contract. Period.)

When sending a Reservation of Rights, they are supposed to also send you a letter saying that they are currently operating under a Reservation of Rights.

They also have to give Mr. Jerk x number of days (30 days from the date of the accident, or the date that it was first reported to them) to respond. During this time, they should still be making daily efforts to reach him by phone, email, letter, whatever.

So, it's been 3 months. Did you report the accident to his insurance company? If so, was it the same day? If not, how many days or weeks after? I don't think I've ever handled a claim where we had a Reservation of Rights out for 3 months (from the date of the accident, or even from the date it was reported if that report was much later) while we wasted time trying to contact a driver who clearly has no interest in talking to us given that he's ignored us for 2-3 months. Extreme cases, maybe 45 days to 2 months. One time I found out a driver was dead (unrelated to the accident). Sometimes it's because they are incarcerated. Sometimes we don't have up to date contact information and can't find it despite serious sleuthing. And more often than not, it's because the person is flat out irresponsible, doesn't understand the risk involved with not having any insurance coverage, and doesn't want to call back.

If you only reported it a month ago, then they've only had a month to try to contact this guy. If you reported it back when the accident happened, that's different.

Four things can happen at this point:

1. The guy calls in, admits to hitting your car, there are no coverage issues (like whether or not he had permission to drive the car) and they say "Hey, we're accepting liability! Here's how much we can offer you for your car and here's the paperwork that needs to be done to deal with it!"

2. The guy calls in, denies hitting your car, acts like he doesn't know what they're talking about, or says that you hit him or some nonsense. If there's a police report or an unbiased, legit eye witness, that will override the fact that he's giving a different story and you should be fine.

3. He never calls in. They've sent the Reservation of Rights, they've sent a follow up letter, they make a million phone calls, but no response. The claims adjuster now reviews it with management and they decide that based on the police report (if one exists and has an actual narrative describing what happened), the driver, Mr. Jerk, was definitely the one operating the car, was definitely negligent, and they owe for the claim. They go ahead and accept liability and pay you.

4. He never calls in. Same as above with the Reservation of Rights. But they review it with management and decide that they don't have enough information (there's no police report to corroborate your version of what happened, no other evidence to support that this accident occurred) and that because the driver has failed to cooperate, they will disclaim coverage to him. What does this mean? It doesn't mean they're saying he's not at fault. It means they're saying he could be at fault, but it doesn't matter to them because he didn't comply with the terms of the auto insurance policy contract and for this reason, they will not cover him for any damages he caused.

In the event of #4, you will want to get a copy of the letter saying "We do not insure Mr. Jerk for this accident" and give it to your insurance company. Ask if you have Uninsured Motorist coverage. I can't remember if NY has Uninsured Motorist Property Damage coverage, but the best course of action is to ask your insurance claims adjuster if you carry the coverage and what the deductible amount would be (sometimes it is lower than your Collision deductible).

I'm very confused as to 1) How this could still be going on after 3 months, unless it was only reported within the last 1-2 months - I mean jeeze, they need to pull the trigger on a decision already!; 2) Why they are telling you that they're working on getting you an offer when they can't even say if they're accepting liability yet, given the fact that they still haven't made first contact with their driver.

Actually, come to think of it, you said "waiting on a statement from their insured policyholder." So, do you know if the policyholder (the person who owns and insures the car) is a different person than the driver? If that is the case, then they may be investigating what's called "permissive use." If the driver is not a listed driver on the policy, or is not a household relative of the policyholder, then they have to verify with the owner/insured that this person not only had permission to drive the car when the accident occurred, but was driving the car within the scope of that permission. Yeah, I know. Permission is a very gray thing. VERY gray. For example, I tell you that you can use my car. But I tell you "Don't drive it at night! And don't drive it outside of the city limits." You then go out at midnight, driving my car fifty miles and four cities over, and hit another vehicle. The insurance company interviews me, and I say, "Yes, I told him he could use my car, but I told him he could not drive it at night or outside of our city." He wasn't using it within the scope of the owner's permission. Thus, he is excluded from coverage under the policy contract.

Have I worn you out enough yet?

With regard to your vehicle evaluation: I'm not sure if your company uses Kelly Blue Book, many use CCC. Whatever they offer you, make sure you are getting a copy of the evaluation, the reason for any difference between what they say it's worth and what you thought it was going to be worth, and then I would also ask them to negotiate with you on the storage fees (if they plan to deduct those from your total loss check). The rental fees won't be applied against the value of the car, but they may not pay every single day of rental for you. They may make an exception given the extraordinary/unusual circumstances here. Can't say for sure.

Again, get your insurance company involved if you have Collision coverage. If they make a payment on your behalf, and you're not at fault, they have a legal right to subrogation against the other insurance carrier and/or at fault party. Unless they make a payment and thereby have a right to recovery, there's little they can do for you other than call and ask what's going on.

And yes, do get free attorney consultations, but get more than one.
posted by nightrecordings at 2:16 PM on April 26, 2015 [5 favorites]

I'm a paralegal who used to work for a personal injury law firm. Unfortunately, I agree with nightrecordings; it is exceedingly rare for attorneys to take on property damage cases. They may take on property damage in addition to a good personal injury case but otherwise it is not worth the amount of money they would get. Believe me, in about half or more of auto claims in which someone wishes to hire an attorney, what they are most upset about is their car, whether or not anyone was hurt. I listened to lots and lots of people complain that they were upside-down on car payments, that the insurance company was screwing them by not paying the value of the car, that the insurance company wasn't paying for towing fees...on and on. Attorneys generally don't care unless they're going to get a cut of the personal injury payout. And if they did negotiate a property damage case, the client would just be upset that the attorney was taking 30% (or whatever) of the payout on the car. It is lose-lose for them.

THAT SAID: If you know any attorneys, one of them may be willing to send a legal letter via certified mail to the owner of the car, as a courtesy or for a small fee. You'd be surprised how many people suddenly aren't too busy to call their insurance company back when they receive an official-looking legal letter.

Also: Re the amount of time this has been dragging on-completely common and completely legal. If they can't get a statement from their insured, they are within their rights to indefinitely not close the file, and to eventually say, "We will not pay out as we could not determine liability."

Were there security cameras in the parking lot? Call the business, they may help.
posted by quincunx at 2:20 PM on April 26, 2015 [1 favorite]

Your insurance company should be negotiating this on your behalf. It's part of what you pay them for.

posted by Thorzdad at 2:20 PM on April 26, 2015

Depending on your state (if you're in the USA) the state insurance commission (or similar) can be helpful if you call and tell them the situation. That helped a friend recently in the NE, where the rough winter meant that the at fault insurance was taking a really long time to even get an adjuster out.
posted by ldthomps at 5:26 PM on April 26, 2015

Just to chime in on the timeline question:

This summer, a driver pulled an incredibly boneheaded and illegal move (U-turn from the parking lane in the middle of a block into traffic) and we clipped them. At the time of the accident, since it was fucking obvious, they accepted responsibility. We dutifully followed through on the reporting, but since there were no injuries and no municipal property damage, LAPD wouldn't even come to the scene. For a while, everything was going swimmingly, and we assumed that even though the insurance policy was in the name of the girl's father that it would be no problem getting paid back for our out-of-pocket (and covered) expenses. Still, just dealing with mailing the forms back and forth took about a month, and I got asked to repeat the story several times (including being recorded). Then suddenly the other company announced that they wanted to contest the claim, which turned into another round of slow postal and fax communication and an 18-day trip to a body shop for the car (to replace two body panels). At this point, I assume that someone deep within the bowels of her insurance provider actually read the statements about the collision and stopped contesting the claim. It still took another two weeks or so to get all of the next round of paperwork sorted out, then another two to get the check.

This was a pretty easy claim with one party obviously at fault and it still took over two months to get everything sorted. Hopefully the great answers you're getting from nightrecordings will help you resolve this, and hopefully my anecdote can highlight some of the byzantine nonsense that can happen even in a fairly normal claim when the system works as it's supposed to.
posted by klangklangston at 12:06 AM on April 27, 2015

Your state has an insurance regulatory department, almost certainly under the attorney general. They can often assist consumers with information, sometimes with advice.
posted by theora55 at 11:31 AM on April 27, 2015

Very great info here. Thanks for the responses. These were my first posts on this site so please bear with me if I'm not completely inline with etiquette.

Just wanted to fill in the holes. We left out the main hole - to not complicate the question.

But when I arrived on the scene there were 4 cars damaged (mine the worst). The cops were there. The owner of the liable car was there too... apparently a neighbor told the cops where he lived. The owner of the liable vehicle claims that his car was stolen. I filed a claim with his insurance company the day after. To complicate it further - the car is a taxi. I never even got the guy's name. On the police report it says driver left scene. The investigation is pending (and probably will be forever). I filed the claim 2.5 months ago. The insurance company is local and is known to be corrupt. The tell me the same thing every week.

I believe I'll reach out to the gov offices as recommended to start.
posted by adamhenson at 3:36 PM on April 28, 2015

I wanted to check back in case you had any questions or other comments, so I'll respond to what you just said:

- I won't bore you with all of the tiny details, but in the insurance claims world, there is a difference between "permissive use" and "theft." Permissive use is an issue when someone you know, or someone who knows someone you know, gains access to the car and drives it without your permission/not in the scope of the permission you gave them. Theft is when a truly random individual breaks into your car and steals it.

- If this was a true theft, and not a friend or coworker or some unsavory type that the cab owner knew personally or as an acquaintance, then the cab owner should have filed a separate police report for the theft. By separate, I mean that there should be a "theft" report for this incident (documenting that the vehicle owner reported the car was stolen, and the circumstances surrounding its theft), and then a separate "accident" report (documenting the collision between the vehicles and the circumstances surrounding that).

- Were this my claim (again, this is not legal or insurance advice, it's insurance information!), I would have obtained the theft report by now. And then, if it proved that our insured's vehicle was stolen and the thief is unknown, I would issue a liability denial. Meaning we would not pay the claim because our insured is not liable, due to the fact that his car had been stolen and he cannot be held legally liable or responsible for what the thief did while operating the stolen car.

- Even if the "thief" was known, it's still likely they'd deny the claim. You could then try to file a claim against the thief's insurance, if he has any, but they may not cover it either for a variety of reasons.

- This is, again, why I recommend contacting your insurance company and asking if you carry any Uninsured Motorist benefits. If you do, ask them what information they need to have on file to move forward with extending that coverage to you. Oftentimes, as a courtesy, if we already know that our insured's vehicle was struck by a car that was stolen at the time, we will move forward with extending the Uninsured Coverage. This may not be the case with all insurance companies in all states. We do this sometimes as a courtesy, since we don't want to delay extending coverage to our insured when we know that we have enough information to determine it's very probable the other insurance company won't cover this. We also know that if it later turns out the other insurance company will cover it, we can still recover the money from them. Or, if the driver can be identified, we will pursue him/her directly to recover the money.

These are all possibilities, not guarantees in your particular situation.

If you file a claim with the state insurance commissioner, they will ask the insurance company to respond and explain why they are still investigating this claim after 2.5 months, and what they are still doing to resolve it. If the insurance commissioner is satisfied with the integrity of their explanation, they will advise you why. If they are not, then the other insurance company is probably in a good bit of trouble.

You can always message me directly on here if you have another question!
posted by nightrecordings at 1:54 PM on April 29, 2015

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