Archives for July 2017

When Insurance Totals Your Car

In a recent blog post I started talking about some of the issues that come up when your car is damaged in a car wreck. However, the one issue I did not get to is when the insurance company tells you that your vehicle is totaled or a total loss. So, what happens when insurance totals your car?

For example, assume you have just finished paying off your Ford Explorer that has a present, book value of $7,000 and because you have taken meticulous care of it over the years, you believe it should run for another 10 years or 100,000 miles. A drunk driver plows into the rear-end of your vehicle and pushes your Explorer into another large SUV causing your airbags to go off. Most likely, your Explorer will be a total loss as each airbag alone tends to cost about over $1,000 to replace.

In Kentucky and Indiana, an insurance company is required to total out a vehicle if the repair costs equal or 75% (in Kentucky) or 70% (in Indiana) of the value of the vehicle. This is a link to a website that describes what I am talking about and lists the percentages for each state, http://www.carinsurance.com/Articles/total-loss-thresholds.aspx.

The problem being that when a car is a total loss, the insurance company owes you the fair market value of the vehicle, not the replacement value.

Therefore, in my example, you could recover the $7,000 the Explorer was worth with some fees for taxes and titling the vehicle. The fact that it may cost you more money to replace that vehicle with something just as good, is irrelevant in the eyes of the law.

Yes, you can keep your vehicle if an accident totals your car. Nothing in the law requires you to turn over your vehicle to the insurance company. However, the insurance company will deduct whatever money they would have gotten from a junkyard for the Explorer. This is usually referred to as salvage value and it tends to run about 20% of the fair market value of the vehicle. So in the case of the Explorer, you could keep it but the insurance company would pay you approximately $5,600 instead and you would have to apply to your local County Clerk for a salvage title.

You have to check with the County Clerk as to the specifics required for a salvage title but, I can tell you that you have to turn in the license plate so the vehicle can not be driven while it is being fixed and a mechanic has to complete an affidavit as to the work done with the appropriate receipts for the parts purchased.

Typically, if insurance totals your car, unless you can fix the vehicle yourself, know a backyard mechanic who can do the repairs cheaply or drive the car ugly because the damage to the vehicle was mostly cosmetic, it is better to let the insurance company haul the car off.

Using Collision Coverage

As a personal injury lawyer, I preach a lot about getting your medical bills paid and recovering your claim for pain and suffering from the insurance company for the at-fault driver. However, what about the damage to your car? What does my collision coverage actually cover? What about a rental car? Who is going to be responsible for fixing my vehicle and putting me in a rental car while it is being fixed? The answer to that question depends all upon the course of action you choose.

Collision coverage, on your own automobile insurance, is the easiest and quickest route to take. Ultimately, your insurance company is going to be responsible for paying for the damage to your vehicle, regardless of who caused the car wreck, less your collision deductible. The downside is that it may be months before you get your deducible back, if at all, and your collision coverage will not provide for a rental car.

Another route is to make a claim against the insurance company for the at-fault driver assuming he was insured and fault for the car wreck clearly rests with him. In such a case, there is no deductible and the insurance carrier will put you in a rental car while your car is being repaired. However, listed above, were two conditions that had to be met before the insurance company is going to agree to pay the first penny:

Their driver has to be at fault for the wreck and
They have to agree that they have insurance coverage for this wreck.

You have to show that the at-fault driver was negligent and that this negligence caused the damage to your vehicle. If you can’t prove negligence by the other driver, the insurance company will simply deny your claim thereby forcing you to either file a lawsuit or use your collision coverage. Remember it is not what you think happened in the car wreck but rather what can you PROVE. (See May 16, 2016 blog, https://attorneydesmond.com/law-depends-upon-can-prove/ .)

So what about the police report? Isn’t that enough to show the other guy was at fault? Sometimes but, recall that negligence means you can show that the other driver had a duty, breached that duty and but for that breach, you would not have suffered your damages.

Nothing in the law prevents an insurance company from making reasonable assumptions, contrary to the assumptions contained in a police report, as to who was at fault for a car wreck; as long as these assumptions are based upon reasonable interpretations of the facts.

When a car wreck involves a drunk driver or a rear-end collision while you are stopped at a traffic light, it is pretty easy to show the other guy was negligent. However, when you have two drivers who both claimed to have entered the intersection on a green light, how do we know who is telling the truth and can’t an insurance company reasonably assume that their insured is being honest?

The second issue is that the insurance company has to have had valid insurance on that vehicle or the driver at the time of the car wreck. Insurance companies can deny insurance coverage for a variety of reasons including but not limited to: their insured is not cooperating with their investigation; the policy premiums have not been paid; they did not insure that driver; or that did not insure the vehicle involved in the car wreck. If this happens, you either have to use your collision coverage or try to find other insurance on this driver to cover the damage to your car.

If you don’t have collision coverage and you can’t find any insurance on the other driver, you may be looking at a lawsuit to try and recover for the damages to your vehicle. The problem being that lawsuits are lengthy, expensive processes that can end with you trying to collect on Judgment wherein the at-fault driver has little to no money to pay that Judgment.

In writing this blog, I realized I may need to address it a little deeper with a future blog or two. So for the moment, I would suggest you call me should you have questions about your damaged automobile. The call is free no matter whether we pursue a personal injury claim or not. You can reach me on my phone at [number]. FYI, since it is my phone, you can text me at that number as well should you prefer that method of contact.

Switzerland County Indiana Motorcycle Accident

Our local news station, WDRB, reported today about an Indiana motorcycle accident in Switzerland County. There were two people on the motorcycle. The driver was fatally injured and the passenger sustained injuries serious enough to be flown to a Cincinnati hospital.

The motorcyclist ran into a deer on State Road 156. The Harley-Davidson then crossed into the other lanes and was struck by another vehicle. Neither the driver nor the passenger was wearing a helmet.

As an attorney, I understand the impact this situation will have on the family members. I’ve stood with families in hospital rooms and even at funerals. No one wants to make light of the seriousness of the loss.

However, as tragic as this accident is, it can be a learning opportunity for the rest of us. I uploaded a post last month about motorcycle passenger injuries. Now that summer is underway, we’re going to hear more stories about accident-related injuries and Indiana traffic fatalities. It’s an unfortunate fact on our Indiana roadways.

First and foremost, if you ride a motorcycle, please wear a helmet. I don’t know if that would have prevented the serious injuries and death in Switzerland County. What I do understand is the statistical proof that wearing a helmet can significantly reduce your risk of head trauma.

Next, as I wrote about in the post I referenced, above, a motorcycle passenger has a claim if he/she is involved in an Indiana motorcycle accident. In this circumstance, the driver is deceased. The passenger can still file a claim against the estate of the deceased driver.

To clarify a common misconception, an “estate” is not just something for wealthy people. When someone dies, the property, assets and debts usually become part of an estate. This estate includes the insurance coverage that someone has at the time of their death that might cover the personal injury claim of the passenger.

While I understand this sounds harsh, recall that the motorcycle passenger had such serious injuries so as to be flown to the University of Cincinnati Hospital. From experience, I can tell you that this helicopter flight alone probably resulted in a $30,000 to $50,000 medical expense.

To put that in perspective, a licensed driver in Kentucky or Indiana is only required by law to carry $25,000 per person in liability insurance. In other words, sometimes a personal injury claim is the only way an injured party can recover their medical expenses and their other out of pocket expenses. Typically, these types of motorcycle wrecks involved underinsured motorist coverage, from the passenger’s own automobile insurance, as the damages far exceed the available insurance coverage.

The Switzerland County Indiana motorcycle accident is a lesson for every motorcyclist and passenger. The WDRB story didn’t report specific information about the passenger, so we don’t know if he/she is a minor, relative or simply a friend. Hopefully, this individual will make a full recovery and begin to move forward. We wish them the best.

The simple lesson for all of us is that before the car or motorcycle wreck ever occurs, make sure you have at least $100,000 per person of uninsured and underinsured motorist coverage on every insurance policy you have for every vehicle. This is sound advice that applies whether you choose to represent yourself in an injury claim and/or whomever you may hire as your personal injury lawyer.

Month: July 2017

Archives for July 2017

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