If you are injured in a car accident and the other driver is at fault, your personal injury claim will be handled separately from your property damage claim. Your personal injury claim may take months to settle and may require an attorney. However, insurance companies usually want to dispose of property damage claims as soon as possible and are actually required to do so by the West Virginia State Insurance Commissioner. The following questions, commonly asked by non-lawyers who attempt to handle their own property claims, and their answers, are intended to help increase the likelihood for you to be able to fairly settle your property damage claim yourself in a short amount of time.
DEALING WITH THE INSURANCE COMPANY ADJUSTER
Q: Will the Adjuster take care of me?
A: Remember who the adjuster’s boss is — insurance companies don’t make money by giving it away.
Q: Will the squeaky wheel get the grease?
A: Usually not. We don’t suggest the “he-who-yells-loudest-and-longest-usually-wins” approach. Adjusters are generally immune to threats and temper tantrums. You’ll get the same reaction if you blow your horn at the truck driver who cuts you off in traffic — it’s all part of the job. Don’t lose your temper. Be firm. Be professional. If you have a problem, file a complaint with the West Virginia Insurance Commissioner’s Office in Charleston, West Virginia.
Q: Should I inflate my claim to allow an extra margin for negotiation and reduction?
A: Not unless you have proper documentation and proof. This approach rarely succeeds in compensating you for the extended settlement battle and more often precipitates costly litigation.
Q: Should I take my own photographs?
A: Absolutely, of all vehicles involved in the collision if possible.
Q: Is there any reason for me to delay settling my property damage claim?
A: No. The claim can often be resolved within a few weeks. Delaying settlement can result in unnecessary storage fees, depreciating car values, increasing repair costs, the possibility of additional damage unrelated to the accident which may give the insurance company an excuse not to pay you, and of course, if you still owe on your car, the payments. You also have a duty to mitigate (minimize) your loss. Take the initiative to resolve your vehicle damage claim.
Q: Can I use collision coverage from my own insurance?
A: Yes. Your collision coverage is a quick way of getting your car repaired. However, you will have to pay any deductible you have, so use your own judgment based on how the other insurance company is handling your claim. Also keep in mind that if you use your own coverage, you may end up being faced with an increased premium, even if your company gets its money back from the other driver’s carrier. Such recovery by your company may or may not include it getting your deductible back for you.
Q: Will my rates go up if I use my own collision coverage?
A: See above — each insurance company is different. You will need to check with your sales agent.
Q: Can I settle with both my insurance company and the other driver or his insurance company for the same vehicle damage?
A: No. You cannot “double dip.” Your insurance company is entitled to be reimbursed if it first pays for the damage and you later also recover from the other driver’s company.
Q: Isn’t the other driver’s insurance responsible to pay for repairs?
A: Certainly. If you are not at fault for the accident, the responsible driver’s liability insurance coverage should pay for your vehicle damage within a reasonable time. Even so, be sure to promptly report the accident to your own insurance company, even if you are not making a claim.
Q: Should I give the insurance company a recorded or written statement of the facts of the accident?
A: Preferably not if you are dealing with the other driver’s insurance company. With your own insurance company, you may be obligated under your policy to give a statement, but be sure to request a copy of any statement given. Do not discuss the specifics of your personal injuries except with your own company.
Q: What if the responsible driver is uninsured and I don’t have collision coverage?
A: Uninsured motorist coverage, which every West Virginia automobile policy must have, is for your own protection and should pay for the car or for the repairs. Report the claim immediately to your insurance agent.
SECTION II REPAIRABLE DAMAGE
Q: How much will the insurance company pay?
A: If your car is not a total loss, meaning it costs more than 70% of what it is worth to fix, you should receive the amount necessary to repair it.
Q: Can I have my car repaired first and then request payment from the insurance company?
A: Not advisable unless you want to create additional unnecessary problems for yourself. Do not have your car fixed without first giving the insurance company an opportunity to assess the damage, take photos and authorize the repairs. Remember, take your own photos first.
Q: How do I obtain a repair estimate?
A: If your car is driveable, some insurance companies have drive-through facilities to appraise the damage while you wait or will come to you. We suggest you get two competitive estimates from reputable body shops. If you have your car repaired at an insurance company “approved” body shop and there turns our to be hidden damages not included in the original estimate or the repairs are faulty, the insurance company must pay for the repairs. These garages are experienced at handling these claims and know what to do. If you choose just any old repair garage and you are not satisfied, it’s between you and the garage owner, not the insurance company.
Q: What if my car is not driveable?
A: If your vehicle was towed from the scene, an appraisal can be done at the tow yard, body shop or wherever the vehicle is now located.
Q: How long will it take for the insurance company to have my car appraised?
A: From a few days to a few weeks, depending on the particular insurance company, whether its adjusters are local, when the accident is reported and whether liability has been accepted, meaning it acknowledges that its driver is at fault.
Q: Can I require “genuine manufacturer parts” to repair my car?
A: In 1995 the West Virginia Legislature passed a law which requires genuine crash parts only if the car is less than three years old, meaning the year the car was manufactured and the two succeeding years. After that, “aftermarket crash parts” may be used.
Q: Can I make the insurance company paint my whole car?
A: No. If only part of your car was damaged, you are not owed an entire paint job. Most shops can match the color of your car accurately, even if it has faded. The body shop may try for a better match by polishing your old paint, but sometimes old and new paint cannot be made to shine the same. You may have to live with it or pay for the difference for an entire paint job on your own.
Q: Will the new paint meet factory standards?
A: Body shop paint cannot be applied in the same manner as factory paint so it is never quite as durable. Still, regular care with a high quality wax or polish can keep it looking good for years.
Q: What if the repair estimate from the insurance company has amounts deducted from repair items labeled “betterment” or “condition adjustment.” What does this mean?
A: These are simply different terms for “depreciation.” The insurance company only owes you for items of the same condition as the ones damaged in the accident. If your tires, brake shoes or other normal “wear-and-tear” items must be replaced with new items, the insurance company is entitled to withhold the difference in value between new and worn items.
Q: Does the insurance company owe for the whole repair even though part of the car was damaged before the accident?
A: Probably not. Insurance appraisers get special training in detecting pre-existing damage. The insurance company may have the right to deduct the estimated cost of repairing prior damage.
Q: Can I choose where my car will be repaired?
A: Yes, but make sure the body shop is reputable, approved and agrees with the insurance company’s estimate for repairs. There may be advantages to having your car repaired at a body shop recommended by the insurance company, for instance, supplemental repairs for hidden damage are usually approved quickly.
Q: How will I be paid for my car repairs?
A: The insurance company will usually issue a check payable to you and the body shop, which you may indorse after you are satisfied with the repairs.
Q: What happens if hidden damage is later discovered?
A: If the body shop finds additional damage that may be from the accident, the repair shop should contact the insurance company for approval. After the appraiser approves the changes from the original estimate, a supplemental check will be issued. Of course, the insurance company can’t be expected to pay for damage that existed before the accident.
Q: What about mechanical damage?
A: Often it is difficult to know the real cause of mechanical problems until the unit is disassembled. It may be your responsibility to pay for the disassembly. If the mechanical damage is shown to be accident-related, the insurance company should pay for it and reimburse you for the disassembly.
Q: Should I have minor damage repaired?
A: Yes. Letting your car go unrepaired can cost you in the long run. Dents and rust spots deduct from the resale or trade-in value of your car.
Q: What if I’m not satisfied with the repairs?
A: You have the right to have the details attended to. Contact the adjuster and discuss the situation.
Q: My car will never be the same. Shouldn’t I just trade it in?
A: That is up to you. You are owed a repair which returns your non-totaled car to its pre-accident condition.
Q: But doesn’t the car lose value?
A: Probably. Repaired cars aren’t worth as much. However there may be some help if another person is at fault. In 1990, the West Virginia Supreme Court of Appeals in a case called Ellis v. King (400 S.E. 2d 235 [W.Va. 1990]) said you can recover for loss of value if you can show (I) actual proof of loss of value, (ii) structural damage, such as a bent frame or broken axles as opposed to new fenders or cosmetic damage and (iii) in the Court’s words “…only a vehicle with significant value prior to the accident is subject to recovery.” The actual case mentioned above involved a three day old Volvo that took five months to repair. So, if you are not in a position to have a written opinion from a new car dealer that your car lost significant value, you may end up wasting your breath.
SECTION III TOTAL LOSS
Q: Can I force the insurance company to replace my car?
A: No. The insurance company normally settles on a cash basis.
Q: Who decides if my car is a total loss?
A: The insurance company.
Q: How does the insurance company determine a total loss?
A: The short answer to this is if it costs more than about 70% of its worth to fix, it’s totaled.
Q: Am I entitled to the price of a new car?
A: No. You are entitled to the value of your car just prior to the collision.
Q: How is my cash settlement value determined?
A: The West Virginia Legislature in West Virginia Code Section 33-6-33 requires insurance companies to use the most recent publication of an “Official Used Car Guide” approved by the State Insurance Commissioner as the guide for setting the minimum value of a car. The Commissioner has adopted the National Automobile Dealers Eastern Regional Used Car Guide book (NADA-E) as the official used car guide for West Virginia. The typical NADA book (sometimes you can even buy one) only goes back five years, but there are NADA books for older models to which car dealers and banks subscribe. NADA books contain three values: Average Retail Value, Average Bank Loan Value and Average Trade-in Value (wholesale). Typically insurance companies start with Average Retail Value (often referred to as “high book”). Now for the deductions. The NADA states the only allowable deductions from the average retail value of a totaled car is high mileage and standard features (like an automatic transmission) which was not originally on the car. On the other hand, there should be increases for low mileage or special options which increased the car’s value. Do not allow “reconditioning” or “clean up” fees to be deducted from the value of your car. The State Insurance Commissioner and the West Virginia Supreme Court in McCormick v. Allstate (475 S.E. 2d 507 [W.Va. 1996]) have determined these deductions are unfair trade practices. The Commissioner states “In assessing average retail condition of an older vehicle, some rust, blemishes, fading of paint, etc. is to be expected.” Such deductions are allowable only when the conditions are “excessive.”
Q: But my car is a restored classic!
A: You may have to pay an independent certified appraiser to evaluate your car. Perhaps the insurance company will honor the appraisal and reimburse you.
Q: Doesn’t sentimental value count for something?
A: Unfortunately, no.
Q: How will I be paid for my car’s total loss?
A: The insurance company will issue a check payable to you and the lienholder, if it’s financed. The title to your car will be signed over to the insurance company.
Q: Is my car worth more because I just replaced the tires or had it painted?
A: Probably not. Upkeep of your vehicle generally helps to only maintain its value not increase it. But be sure to advise the adjuster of any recent major expenses. However, as a suggestion, if you’re not getting credit for the new tires, there may be no prohibition for putting the old ones back on.
Q: Do I need to make my car payment and my insurance payment if my car has been “totaled?”
A: Maybe not, if you advise your bank and insurance company of the situation and they agree. If you are in a temporary rental car, you must continue making your insurance payment.
Q: If my car is “totaled,” am I entitled to sales tax and registration fees in addition to cash settlement value?
A: Yes. Five percent must be added to the cash settlement value to reimburse you for the tax you will pay in buying another car, plus the registration fee.
Q: Can I keep my car?
A: Sometimes, but you will receive only the amount of the vehicle less its salvage value. The title will be changed to a salvage certificate. Usually insurance companies do not want to bother with these arrangements, but you may.
Q: What is a salvage certificate?
A: A title for a salvage vehicle not fit for the road.
Q: What is salvage value?
A: The amount a salvage yard is willing to pay for your wrecked vehicle.
Q: What if I owe more than the actual cash settlement value of my car?
A: This unfortunate circumstance is sometimes called “upside down” and generally happens on older used vehicles which have been purchased on a poor finance plan. Often, because of finance charges, you are paying to the bank more than the car is worth. The insurance company does not have to pay what is owed, but only what it’s worth.
Q: Is it possible to avoid owing money to the bank on my “totaled” car?
A: You signed a promissory note to the bank and have to pay no matter what. Sometimes banks will allow a “substitution of collateral.” Perhaps a body shop will agree to repair a “totaled” vehicle for the amount paid by the insurance company. After the repairs the salvage certificate can be changed to a regular title with proper approvals.
Q: What is “substitution of collateral?”
A: Some lenders will accept a comparable car as collateral on your existing loan and let you finish paying off the loan. This arrangement requires cooperation with the lender, dealer, insurance company and you. It is up to you to propose this solution.
SECTION IV TOWING AND RENTAL
Q: What about towing and storage?
A: The insurance company should reimburse you for these expenses.
Q: How do I obtain my personal items if my car was towed?
A: Contact the tow yard right away and find out what its rules are. You may need to bring identification or proof of ownership to the tow yard during regular business hours to remove your personal items.
Q: Am I entitled to a rental car?
A: If your car is not driveable, or as soon as your vehicle goes into the shop for repairs, you can request a rental car, comparable to your vehicle that was damaged, either from your insurance company, if you have rental reimbursement coverage, or typically from the insurance company of the responsible driver. You must promptly return the rental car when the insurance company makes a commercially reasonable offer for your total loss or when the repairs to your damaged vehicle have been completed. Perhaps there was some time when you were without transportation, your car or a rental. You are entitled to compensation for loss of use. Perhaps there were incidental expenses. You are usually not entitled to a rental car during disputes with the insurance company regarding repairs or cash settlement value. It is always their first move: jerk your rental. It is amazing how much easier it is to resolve these disputes when the insurance company finds out you have other transport and are not at their mercy.
Q: What kind of rental car am I entitled to?
A: Basic transportation, comparable to your vehicle, but nothing fancy. You may be entitled to a specific type of rental car to accommodate your physical disabilities, job requirements or location of your home.
Q: Do I have to purchase the extra insurance coverage required by the rental car company?
A: If you have full coverage in force on your own car you won’t have to purchase the additional rental car coverage. Have your insurance agent transfer the coverage. If you don’t have full coverage on your own vehicle you will have to pay for full coverage on the rental car. You may not be reimbursed for this expense, so check with your insurance company first.
Q: What if the insurance company wants me to sign a release?
A: Any proposed release should refer to property damage only and not contain language releasing “all claims” or your “personal injury claim.”
SECTION V BEST REMEDY
Q: What do I do if I feel I am being treated unfairly?
A: Complain to the West Virginia Insurance Commissioner. Insurance companies do not like a record of complaints, even if you later resolve matters amicably, because those records could come back to haunt them in the future. Running to a lawyer for only a property damage claim is rarely a good idea. A lawyer’s best weapon is going to court. This is a lousy option in property damage claims, if for no other reason than it is expensive and takes too long. Insurance companies do however sometimes fear the Insurance Commissioner, but not lawyers, on property damage claims.