Legal Question in Personal Injury in California
I was recently in a car accident and did not have insurance. The accident was deemed the other persons fault since she pulled out in front of me on her cell phone. I own a 2007 350 z nissan with less than 51 thousand miles and kept up on all maintanance. So the problem is that she apperently had one insurance for the car that had collision only so we settled for the max which was 5 thousand and now I am dealing with AAA and they want to total my car because to have it repaired would be 10,500.00 so now they want to settle for a little over 15 thousand so there portion is a little over 10 because they are adding in the 5 from the other insurance company. However if I want to keep the car they want to minus that settlement by 3,700.00 which is what they will charge me to keep my totalled car. This does not give me enought to have it fixed. All I want is to be back in the same position as I was before the accident. what advice would you give me?
3 Answers from Attorneys
Next time get insurance. California law is clear that if the insurance company totals the car, you turn in the car and get the value of the car before the accident. If you want to keep the salvage wreck, you don't get the full value, because you buy back the salvage wreck. It is irrelevant whether or not the money will pay the cost of the repairs.
You can never be in exactly the same position you were before the accident. That car you were driving is gone forever. If you retain salvage, you will be driving a car that will never be the same no matter how much you spend on repairs, and it will have a "salvage title" making it un-sellable except for junk. My advice is to give the wreck to AAA and keep the full $15K, then go buy yourself another car.
California law on property damage states that you are entitled to the lesser of:
(A) Cost of Repair; OR
(B) Fair Market Value.
Based on what you've stated, the car is considered a total loss (cost of repair exceeds market value). For that reason, you are entitled to the Fair Market Value of your car pre-accident.
If the other driver's insurance has tendered the policy (i.e. offered all the money available under the insurance policy), then you must decide whether that's sufficient to cover what you are entitled to under the law (i.e. Fair Market Value).
To determine Fair Market Value (FMV), take a look at the free resources online (i.e. kbb.com, nada.com, craigslist.org, etc.). Print out everything that's relevant to assessing the value of your car and determine for yourself what the FMV is.
If the FMV of your car exceeds what is offered by the insurance company, then you must decide whether or not it's worth it to pursue litigation. Sometimes the difference is so little that it doesn't make much sense to waste time/money and just accept.
On the other hand, if the difference is significant, then you should consider and educate yourself regarding the legal process. At the same time, you should be aware that suing the defendant driver for an amount exceeding the policy limits will result in you attempting to collect money from the driver personally - this has its own hurdles.
Best of luck to you!
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