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I don't know what to do. I would be enormously grateful for any insight or advice!
My vehicle is a 2007 Honda Accord EX-L with 118k miles on it. It was in an accident - it had rained and a Tacoma entering the freeway hydroplaned across all the lanes, slamming into a Mazda first, then broadsiding me on one side (I spun 180 degrees), and slamming into me a 2nd time on the other side. I was (surprisingly) unharmed, but the damage was severe - I have three doors that won't open, a sunken hood, and so on.
The woman who hit me was obviously found to be at fault in the police report, there were witnesses, etc. I did not have collision coverage (long story) and my uninsured coverage is limited to bodily injury, so my insurance told me to file a claim against her insurance directly.
Per KBB, my vehicle was worth about $4,800, pre-accident. I'm in California and she only had the state minimum liability of $5,000 with Alliance/Kemper (a cheapo company that doesn't have a great rep). I got an estimate of around $9k to fix the damage, so I expected a total loss.
After a month, the adjuster got in touch:
"Your vehicle is a total loss. We are unable to settle at this time because we are waiting to receive the damage estimates [for the Mazda] . We have a policy limits issue which means there is not enough available to handle all damages at 100%. Once we have the estimate we will submit to our Limits Department to determine how much we are able to offer everyone. Everyone needs to sign and return the releases before we can issue payment."
I feel like I'm going to get screwed unless I have a strategy. I went to cashforcars.com, but since my vehicle is now severely damaged and will be considered "salvaged", was offered a paltry $560. I did a lot of research, but still have major questions:
Is there some rule that the Mazda gets a higher share of the available $5k because it got hit first? If I get a crap offer (say, $700 or some other BS), couldn't I counter-argue that if both our damages exceed $5k, I'm entitled to half the pot? Is it reasonable to argue for a 50-50 split? Is there a way to pressure my adjuster before they come up with an offer so she knows I mean business?
I've read horror stories about lowball offers for total losses and how I should counter-offer to get near the real value. But how do I even negotiate considering the $5k cap for both cars? If I provide comps for similar vehicles in my area, they can say, "Comps are immaterial, we warned you there wasn't enough and this is what the limit allows" (even if they're lying).
I have the info for the owner of the Mazda. Could I reach out and ask how much he's offered, and then use that against Kemper? "You guys offered him a repair of $3k, but are only offering me $700. So don't tell me you've reached the limit". Alternatively, can I ask for transparency in what is being offered to all parties?
3. How many counter-offers are normal; at what point can I honestly believe it's their final offer? They're going to claim their hands are tied by the limit, whether that's true or not. How much can I push them?
4. If I do sue them, would I only sue the at-fault driver, or the driver AND her insurance company? I would try to do it in small claims court, since I don't want to spend a bunch on a lawyer for such a relatively small (yet for me, necessary) amount.
If I can include the insurance company, under what grounds might that be? Bad faith for refusal to settle for a fair amount? Might they be willing to offer a little over her limit to avoid a suit?
I'm worried because even if I won a judgement (I have all the proof on my side), the at-fault driver is a Guatemalan lady who doesn't speak English and was driving without a license. Even assuming she has money or assets, I hear that it's virtually impossible to collect on a judgment, have wages garnished, etc. So suing could be a crazy roll of the dice, even with all the proof on my side.
5. Can I negotiate privately with the at-fault driver? I speak fluent Spanish, so once the insurance makes their offer, could I approach her in a civilized way and say,
"Your insurance is offering X, which is insufficient per KBB value Y. That leaves me with no choice but to sue you - I have everything I need to win, ask for your license to be taken away, get assets, garnish wages, etc. If you force me to sue you, I have to decline the insurance payment (it comes with a waiver), so you're on the hook for the full amount. However, I can accept the insurance payment, provided you make things easier for me by giving me something extra on top of that; I'll sign the waiver and all your troubles go away."
I don't expect her to fork out thousands, but *something* to mitigate my losses..
What would you guys do? I'm very worried. I've been shopping for a used car, but it's hard to budget without knowing how much I can expect for my vehicle.
Sorry for the long story and thanks for reading. Thanks so very much for your help!
The part about "I speak fluent spanish" bothers me. You
will have a hard task trying to negotiate anything ..lol Dont forget that in most states the at fault insurance company HAS 3 FULL YEARS to try and settle with you and you dont get a dime until it is. They use this all the time to pressure for a fast low ball settlement. Yes you can sue the "person" but they may disappear before you get paid . You may not have the drivers real name now. good luck
I do have the driver's real name, phone number, and address from the police report.
I'm not sure why the fact that I speak Spanish bothers you - the lady does not speak English, but I have the opportunity to engage her in her native tongue. Who knows, but I'm assuming it might just make communicating easier.
The part about "I speak fluent spanish" bothers me. You
will have a hard task trying to negotiate anything ..lol Dont forget that in most states the at fault insurance company HAS 3 FULL YEARS to try and settle with you and you dont get a dime until it is. They use this all the time to pressure for a fast low ball settlement. Yes you can sue the "person" but they may disappear before you get paid . You may not have the drivers real name now. good luck
The woman who hit me was obviously found to be at fault in the police report, there were witnesses, etc. I did not have collision coverage (long story) and my uninsured coverage is limited to bodily injury, so my insurance told me to file a claim against her insurance directly.
Why in the world did you limit your UM coverage to BI only? CA requires the offer of UMPD coverage. Your insurer or agent may be on the hook if they cannot produce a signed waiver of this coverage.
Quote:
I'm in California and she only had the state minimum liability of $5,000 with Alliance/Kemper (a cheapo company that doesn't have a great rep).
Strange - Kemper Group has over 1.5 billion in premiums, not exactly a "cheapo company".
Quote:
Is there some rule that the Mazda gets a higher share of the available $5k because it got hit first? If I get a crap offer (say, $700 or some other BS), couldn't I counter-argue that if both our damages exceed $5k, I'm entitled to half the pot? Is it reasonable to argue for a 50-50 split? Is there a way to pressure my adjuster before they come up with an offer so she knows I mean business?
It's generally handled Pro-Rata, which means if your car is 5K and their damage is 10K, they get 2/3 of the limits and you get the remainder.
Quote:
I've read horror stories about lowball offers for total losses and how I should counter-offer to get near the real value. But how do I even negotiate considering the $5k cap for both cars? If I provide comps for similar vehicles in my area, they can say, "Comps are immaterial, we warned you there wasn't enough and this is what the limit allows" (even if they're lying).
This is just paranoia and speculation.
Quote:
I have the info for the owner of the Mazda. Could I reach out and ask how much he's offered, and then use that against Kemper? "You guys offered him a repair of $3k, but are only offering me $700. So don't tell me you've reached the limit". Alternatively, can I ask for transparency in what is being offered to all parties?
Yes. You are free to do whatever.
Quote:
3. How many counter-offers are normal; at what point can I honestly believe it's their final offer? They're going to claim their hands are tied by the limit, whether that's true or not. How much can I push them?
You can push all you want, they can't walk away from the bargaining table.
Quote:
4. If I do sue them, would I only sue the at-fault driver, or the driver AND her insurance company? I would try to do it in small claims court, since I don't want to spend a bunch on a lawyer for such a relatively small (yet for me, necessary) amount.
You sue the insured. The insurance company has a duty to defend.
Quote:
If I can include the insurance company, under what grounds might that be? Bad faith for refusal to settle for a fair amount? Might they be willing to offer a little over her limit to avoid a suit?
they cannot offer more than the limit, nor should you attach the insurance company. That would be a separate complaint filed through the department of insurance for claims practices.
Quote:
I'm worried because even if I won a judgement (I have all the proof on my side), the at-fault driver is a Guatemalan lady who doesn't speak English and was driving without a license. Even assuming she has money or assets, I hear that it's virtually impossible to collect on a judgment, have wages garnished, etc. So suing could be a crazy roll of the dice, even with all the proof on my side.
Which is why you should have carried UMPD.
Quote:
5. Can I negotiate privately with the at-fault driver? I speak fluent Spanish, so once the insurance makes their offer, could I approach her in a civilized way and say,
"Your insurance is offering X, which is insufficient per KBB value Y. That leaves me with no choice but to sue you - I have everything I need to win, ask for your license to be taken away, get assets, garnish wages, etc. If you force me to sue you, I have to decline the insurance payment (it comes with a waiver), so you're on the hook for the full amount. However, I can accept the insurance payment, provided you make things easier for me by giving me something extra on top of that; I'll sign the waiver and all your troubles go away."
You don't have to decline the waiver. You are free to go after the insured for the difference - the insurance company is letting you know you've waived your right to go after them for any further indemnification.
Quote:
What would you guys do? I'm very worried. I've been shopping for a used car, but it's hard to budget without knowing how much I can expect for my vehicle.
I'd carry UMPD. Since that's not an option, you don't have a choice but to wait and see.
I would simply sue the driver and/or registered owner in small claims court and serve the papers on the insurance company, the registered owner of the vehicle, and the driver in question.
Just because she's Guatemalan and doesn't speak English doesn't mean she doesn't have resources. Her insurance plan may well be that her family will share in any unexpected costs over and above the amount covered by the insurance. For all we know, she may have kids who speak fluent English and are established professionals making $100k a year.
I don't know what to do. I would be enormously grateful for any insight or advice!
My vehicle is a 2007 Honda Accord EX-L with 118k miles on it. It was in an accident - it had rained and a Tacoma entering the freeway hydroplaned across all the lanes, slamming into a Mazda first, then broadsiding me on one side (I spun 180 degrees), and slamming into me a 2nd time on the other side. I was (surprisingly) unharmed, but the damage was severe - I have three doors that won't open, a sunken hood, and so on.
The woman who hit me was obviously found to be at fault in the police report, there were witnesses, etc. I did not have collision coverage (long story) and my uninsured coverage is limited to bodily injury, so my insurance told me to file a claim against her insurance directly.
Per KBB, my vehicle was worth about $4,800, pre-accident. I'm in California and she only had the state minimum liability of $5,000 with Alliance/Kemper (a cheapo company that doesn't have a great rep). I got an estimate of around $9k to fix the damage, so I expected a total loss.
After a month, the adjuster got in touch:
"Your vehicle is a total loss. We are unable to settle at this time because we are waiting to receive the damage estimates [for the Mazda] . We have a policy limits issue which means there is not enough available to handle all damages at 100%. Once we have the estimate we will submit to our Limits Department to determine how much we are able to offer everyone. Everyone needs to sign and return the releases before we can issue payment."
I feel like I'm going to get screwed unless I have a strategy. I went to cashforcars.com, but since my vehicle is now severely damaged and will be considered "salvaged", was offered a paltry $560. I did a lot of research, but still have major questions:
Is there some rule that the Mazda gets a higher share of the available $5k because it got hit first? If I get a crap offer (say, $700 or some other BS), couldn't I counter-argue that if both our damages exceed $5k, I'm entitled to half the pot? Is it reasonable to argue for a 50-50 split? Is there a way to pressure my adjuster before they come up with an offer so she knows I mean business?
In situations where multiple vehicles are damaged and insurance is insufficient, the insurance company will generally pro-rate damages between the two claimants. Example: Vehicle 1 has $5,000 damages and vehicle 2 has $10,000 in damages. Total damages are $15,000, but property damage liability coverage is only $5,000. Each driver gets 33.3% of their total damages. Vehicle 1 gets $1,666.66. Vehicle 2 gets $3,333.34. A caution though. The insurance company is not under an obligation to do this. Most of the time they do, but I don't think there is a prohibition against them paying one of the two drivers all of the $5,000 and than telling the other driver "tough luck, buddy". The insurance company doesn't owe you a legal duty. It owes a duty to its insured, the Spanish speaking lady.
My advice? Get your claim to the adjuster ASAP. That's in case, he decides to pay everything to the first person who makes a claim which I believe they can do.
I've read horror stories about lowball offers for total losses and how I should counter-offer to get near the real value. But how do I even negotiate considering the $5k cap for both cars? If I provide comps for similar vehicles in my area, they can say, "Comps are immaterial, we warned you there wasn't enough and this is what the limit allows" (even if they're lying).
My advice here is don't even worry about it. You're in a bad way. The last thing you should be worrying about is how to get more than $4,800 out of your car. Let's be frank if you got that it would be a fantastic victory and one you are very unlikely to achieve. I don't know....you remind me of clients who lay awake at night trying to find ways to get another $200 out of their wrecked car. Seriously, your time in this situation probably has better uses.
I have the info for the owner of the Mazda. Could I reach out and ask how much he's offered, and then use that against Kemper? "You guys offered him a repair of $3k, but are only offering me $700. So don't tell me you've reached the limit". Alternatively, can I ask for transparency in what is being offered to all parties?
Sure, but it might not change a thing. First, he doesn't have to give you that information. Second, I don't believe the insurance company has to be transparent in its dealings with you because YOU are NOT their insured. The Spanish speaking lady is. Maybe they would choose to give you this information, but I don't see them having a duty to do so.
3. How many counter-offers are normal; at what point can I honestly believe it's their final offer? They're going to claim their hands are tied by the limit, whether that's true or not. How much can I push them?
See above. Stop worrying about it. This is a take-what-you-can-get situation and move on.
4. If I do sue them, would I only sue the at-fault driver, or the driver AND her insurance company? I would try to do it in small claims court, since I don't want to spend a bunch on a lawyer for such a relatively small (yet for me, necessary) amount.
You would sue the at-fault driver. If you do it, you not only have to file suit you need to get her served with process too.
If I can include the insurance company, under what grounds might that be? Bad faith for refusal to settle for a fair amount? Might they be willing to offer a little over her limit to avoid a suit?
You can't. Don't worry about it. No, they won't be willing to over any more.
I'm worried because even if I won a judgement (I have all the proof on my side), the at-fault driver is a Guatemalan lady who doesn't speak English and was driving without a license. Even assuming she has money or assets, I hear that it's virtually impossible to collect on a judgment, have wages garnished, etc. So suing could be a crazy roll of the dice, even with all the proof on my side.
That's probably a legitimate worry. I think you try to get money out of her insurance and you let it go after you do that. Next time, buy your UMPD insurance like others have said.
5. Can I negotiate privately with the at-fault driver? I speak fluent Spanish, so once the insurance makes their offer, could I approach her in a civilized way and say,
You could, but someone with this bad of insurance probably doesn't have a lot of money to pay you. You better think of it in those terms. Being Spanish-speaking ought to tell you something else about her financial solvency as well.
"Your insurance is offering X, which is insufficient per KBB value Y. That leaves me with no choice but to sue you - I have everything I need to win, ask for your license to be taken away, get assets, garnish wages, etc. If you force me to sue you, I have to decline the insurance payment (it comes with a waiver), so you're on the hook for the full amount. However, I can accept the insurance payment, provided you make things easier for me by giving me something extra on top of that; I'll sign the waiver and all your troubles go away."
I don't expect her to fork out thousands, but *something* to mitigate my losses..
What would you guys do? I'm very worried. I've been shopping for a used car, but it's hard to budget without knowing how much I can expect for my vehicle.
Sorry for the long story and thanks for reading. Thanks so very much for your help!
Californians have the worst car insurance in the country. Its over priced and hordes of people carry the 15/30/5 limits which are an absolute joke in this day and age.
Thanks so much to everyone for your kind and illuminating responses.
I know there's a correlation between immigrant families that don't speak English and poverty. That said, I don't want to decide based on a stereotype - I know many who make a pretty good living as contractors and so on. Her address is just 5 minutes away from mine, so I drove by today to ensure it was the right address in case I decide to proceed legally or send her a certified letter.
The crashed Tacoma was outside. It's actually a pretty nice and spacious suburban house, in a better area than where I live, and maybe five times the size of the teensy loft apartment I'm renting.
I guess I don't have anything to lose by approaching her. I speak Spanish with native fluency, so I can probably engage with her finesse. If she can offer me something, anything, it would be make more likely to accept a settlement. If not, I can decide accordingly. I lost my job this month and having to buy a new car is tough right now. I empathize with what may be financial hardship for her, but I'm in the same boat.
As I said there could be issues from the driver. If she has no license you need to insist that she be arrested,,,,,you see thats against our laws here, maybe not so much in guatemalan
I do have one final question....
Since the payment for my totaled car would be incomplete (e.g., probably far less than the full value), I get to keep the car to sell it for scrap, correct? Otherwise, how would it make sense for the insurance co. to say, "we're only giving you 30% of your vehicle's value because of our insured's limits, but we still get to keep it"?
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