From: <pnkmoore@xxxxxxxxxxxxx>
Reply-To: mailing-list@xxxxxxxxxxxxxxxx
To: <mailing-list@xxxxxxxxxxxxxxxx>
Subject: Re: IML:drunk people & insurance claims
Date: Sun, 8 Oct 2006 13:22:17 -0500
I just read my note over and realize that I said: " the minimum is one
year" regarding the amount of time you have to make a claim. I shouldn't
be so specific, because I don't know New York law. I've never heard of a
state having a tort claim statute that is shorter than a year, but I've
never had to know what the New York law says in that regard.
So, I guess a disclaimer is in order: While I hope my information is
helpful, keep in mind that I'm a Louisiana lawyer, not New York, so use my
information as you see fit but be aware of my lack of expertise in the law
of your area. That being said, it's not going to be remarkably different.
I've tried cases in about 11 different states in my life, and it never
ceases to amaze me how it's all basically the same. Also, insurance
company all think and operate alike, no matter where they're from.
Bottom line on the disclaimer: My advice is to be used for friendly,
non-professional purposes only. Plainly, I don't represent you, am not
offering to representing you, and strongly suggest you get local counsel.
Patrick
----- Original Message ----- From: <pnkmoore@xxxxxxxxxxxxx>
To: <mailing-list@xxxxxxxxxxxxxxxx>
Sent: Sunday, October 08, 2006 12:16 PM
Subject: IML:drunk people & insurance claims
I did auto defense work for insurance companies for years in my law
practice, and still do some. Representing the "enemy," I have some
thoughts that may be of help to you. I'll start be saying that Ray and
Kenyon both had very correct advice. There are a few additional things to
keep in mind:
Insurers differ, so there's a bit of the luck of the draw as to how you're
going to be dealt with. Of course, they'll all in the business of giving
away as few dollars as possible, so you'd best prepare yourself for the
low-ball offer from an unsympathetic adjuster who will maintain ignorance
(fiegned or real, the former being more likely) as to the value of the
car. They do this as a matter of course, as some appreciable number of
claimants will take whatever is offered first without objection.
Be prepared to be inconvenienced and to have to create your own evidence
of value. They won't do it for you, and be prepared the entire process to
take some time. The guy who hit you is the culprit here, so keep that in
mind if the insurer treats you like an inconvenience. This has been
foisted upon you by a criminal: you're not the bad guy.
Be prepared also to have to bring the matter to small claims court, this
given the fact that you're valuing an unual car that their estimating
systems won't easily categorize. I'm the magistrate judge for the local
city court, and have experience (in small Southern town terminology
anyway, but the outcome is the same). You live in Brooklyn, I think you
said, so there's little doubt that a small claims system exists within the
City or County government that has more than enough dollar jurisdiction
(probably a $25K maximum) to help you, and those systems are usually
"non-lawyer" friendly to some degree, meaning a thinking man of the
general public shouldn't have too much trouble traversing the procedures
necessary to get the matter properly lodged. The clerks are supposed to
supply you with sufficient instructions, probably in the form of printed
material, to permit you access to the court.
This is important, regardless of whether you plan to take the claim to
court: If the you can get the police report on the DWI findings, meaning
a blood alcohol level or if the guy pleads guilty to DWI, most states have
double damage laws in favor of claimants such as yourself, though not
always for property damage claims only. I wouldn't hesitate to let the
adjuster know you're looking into that possibility, the result being that
they'll want to get rid of your claim sooner and may throw more money at
it. The drunk guy's policy may exclude that type of coverage, but be
assured it will help your claim be one they don't like. In the same vien,
be aware that most states require insurance companies to pay property
damage claims within thirty days of receiving "full proof of loss."
Accordingly, the thing to do there is to provide them up front with good
evidence of value, the best numbers you can find (Ebay, Hemmings,
whatever) AND MAKE A SPECIFIC DEMAND! The rule there is to make your first
demand higher than you're willing to take (i.e. you think it's worth $5k,
demand $10k first). When you deliver the demand, which you need to make
in writing, also make them aware that you consider this adequate proof of
loss, that they have 30 days to pay you the demanded amount, and close
your note (politely!) with the fact that if you can't come to an
agreement, your next trip is to the courthouse.
Adjusters hate "pro-se" plaintiffs in the courthouse, meaning people who
file suit without the benefit of an attorney. Judges often end up helping
pro-se plaintiffs more than a represented plaintiff.
Overall, get your best valuation evidence, be polite, prepared and
unruffled. They can pressure you all they want, but they can't make you
sign anything on the spot. Take your time, subject to the fact that your
state will impose a statute of limitations, or "prescrption" period on the
claim. The minimum is one year. Plainly, if you get paper in front of
them with valuation and keep those phone calls and letters coming, you'll
be in a position to settle before the statute runs out.
If you hear: "We don't use Ebay for valuation" The answer to that is
"Okay, but I think the Judge might. Let's find out!"
Salvage: Given your description of damage, I suspect that the cost of
repair will far exceed the cost of replacement/actual cash value. The
drunk guy is only obligated to pay the lesser of those two numbers. I
know that seems unfair, particularly since this is your dad's car, but
that's what the law tolerates. Get body shop damages anyway, as the high
numbers will enhance your claim. So will the fact that this was your
Dad's car and you are justified in associating higher value to it. Note
that the insurance company will have to do a body repair estimate too, and
you might find it to be pretty accurate when compared to what you get from
a body shop. Be prepared too for the body shop to ask "you want an
estimate for us to really fix it, or for an insrance company?" The two
totals may vary greatly! They may charge for the estimate (unless you
know the guy). I don't know what your local economy tolerates so I'm
trying to guess at all possibilties. Since your car is on the street and
given your zip code, keeping salvage may be impractical. If you want it,
don't expect to pay more than a few hundred dollars.
One last trick, one that I've used to my advantage in several cases: Call
a bank or go to a auto finance website (and if the insurer is huge enough
to offer auto financing, call them! USAA, for instance, owns a bank and
offers financing to their insureds, even on classic cars) and find out how
much the bank would secure the make and model Imperial if you were
financing it's purchase. I have used this method with powerful results
against insurance adjusters who complain that there was no way to value an
old car, or that an old car is only worth $500. My response was "Well,
let me help you out. Here's Bank of America's website printout for classic
car financing, and they'll secure the same make and model car for $10,000
in the condition mine was in. Get out your checkbook!"
Sorry this was so long, but I got a little carried away. I hope it helps.
Good luck.
Patrick
Southeast Louisiana
'58 Southampton project car
----- Original Message ----- From: "Rob McCall" <Rob_Mopar@xxxxxxxxxxx>
To: <mailing-list@xxxxxxxxxxxxxxxx>
Sent: Saturday, October 07, 2006 9:39 PM
Subject: RE: IML:drunk people & insurance claims
The only thing I can add to what Kenyon said is to insist that you do not
want the car totaled, you want the money for repairs. Even if you do
decide
later that the car is too far gone to repair, it's your call, not his
insurance company's. With the age of the car, they may not argue. You
might not be able to get all the money necessary to repair the car, but it
would be something to work with.
Rob McCall
'67 LeBaron
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