Legal Question in Personal Injury in California
Five weeks ago a customer backed into my motorcycle while I was at work. He wanted to pay for my damages and keep the insurance company out of it. Close to the end of the second week after the accident I took it to another reputable shop after having been let down by the first shop for not being thorough in their assessment. After I got my motorcycle back I called the guy and told him the amount the shop quoted the damages plus labor for. He flipped and having already gone through 2 weeks of BS with this guy I called his insurance company the next day to file the claim. Two days after the claim,the field appraiser came out to do a visual inspection and then submitted an appraisal for $2000. I was not satisfied knowing that there were more damages to the bike and labor had not been considered. The appraiser went out about 2 weeks later to talk with the repair shop and then she submitted another "supplemental damages" appraisal for a total of $4500. I have both checks for that amount but am seeking 'loss of use' and possibly 'damage value'. I recently faxed a 'loss of use' and compensation for the damage estimate I paid out of pocket for. They denied the estimate I paid for claiming that the field appraisers 'estimate' is free.My argument is of course I am not qualified nor the field appraiser to know the full extent of the damages without technical knowledge in motorcycle mechanics(which is why I took it to the most reputable shop in my area.) In regards to 'loss of use",they only wanted to pay out $299.85(15 days x $19.99/day) despite the fact that I've been without my motorcycle for 38 days now! I was considering renting a vehicle but having no assurance of how much would be covered and fear of the insureds policy being the minimal for property damage I choose not too. However my wife and I have been really inconvenienced because we have only one car and have to take each other to and from work. Adding to more expenditures on gas since our motorcycle is our commuting vehicle.
I was also considering claiming 'diminished value' but am not too sure for a couple of reasons:
First,if the insureds policy is high enough to cover it.
Second,do I have to have my motorcycle completely fixed? Or to what extent? I cannot approve al the damages to be fixed since I do not know how my claim will turn out since only $4500 has been approved and that is about %60 what my bike was worth before the accident.
Lastly,if I can claim DV,and the insurance cannot cover it,can I go after the person who hit my motorcycle along with any "loss of use" amount not covered by the insurance company?
Any advice would be greatly appreciated! especially in regards to how I can properly be compensated for 'loss of us"?
I wanted to add that last I spoke with the adjustment team(since it's not just one adjuster apparently) they mentioned that in cashing either the last check for "supplemental damages" or both that would constitute the settlement of the claim. The guy I spoke with made an indirect mention that whatever has been paid out covers the damages and the rest is not part of the accident or that anything other "damages" I am claiming have to be on the supplemental damages appraisal.
2 Answers from Attorneys
As to your several questions:
1. While it makes sense, the courts have held that there is no compensation for diminished value. Even if a vehicle is restored back entirely to its pre-accident condition, it clearly has a lesser value as if you try to re-sell it everyone will offer less than the same vehicle not involved in an accident. So there is no way you can recover for that drop in value.
2. You are entitled to the cost of a similar vehicle for the reasonable amount of time it takes to repair your vehicle. The insurance company's argument that if you cashed any of the checks that would result in a settlement of the entire case is not necessarily correct [if check does not say that and you thought settling piecemeal, etc.] but you can turn it around by pointing that that is their position so until the issue of loss of use is resolved you can not afford to get the bike repaired as you would have to cash the check, so they are responsible for loss of use until a final settlement is made.
3. You are entitled to loss of use whether or not you have the motor bike repaired, as yo have still suffered the damage of the decrease in value measured by the cost of repair;
4. normally the cost of getting a repair estimate would not be recoverable, but argue to them that because their insured did not want to report the accident, you had to go and get an estimate as there was no one there from the insurance company to do it and their insured demanded an estimate.
5. The insurance company has no liability to you. It has a responsibility to it insured to try to settle the case within the policy limits and can be sued by its injured if it does not. Any suit by you is filed against the insured, and not the insurance company.
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