Property Damage Lawyer Explains Your Rights

At Craig Swapp & Associates, we contract with our clients to handle their personal injury cases, which do not include property damage claims. However, we are happy to assist our clients with helpful advice on how to satisfactorily resolve any property damage issues.

Below are a number of common questions our clients have about property damage and our recommended solutions:

Under the law, what rights do I have?
How do I go about getting my car fixed or what if my car is totaled?
How do I get my car fixed if the at-fault driver has no insurance?
What about a rental car?
What does it mean when my car is ‘totaled?’
Do I have to pay for towing and storage of my vehicle?
Can I choose where I want my vehicle repaired?
What if I just replaced the engine or installed new tires on my car?
Does the insurance company have to use OEM parts with the repair?
What other issues should I be aware of during the repair?
What if the insurance company wants to total my car, but I want it fixed?

Under the law, what rights do I have?

You have the right to have your car repaired and to be compensated for the fair market value of the car if it is totaled. If the accident is not your fault, you have the right to a rental car paid by the liability insurer while your vehicle is being repaired and you have the right to be compensated for any loss in value due to the vehicle being in a collision. You also have the right to use a repair shop of your choosing over the insurance company’s ‘authorized’ repair shop. If your vehicle is totaled, you also have the right to be reimbursed for the applicable sales tax on the fair market value, cost of tag transfer and prorated annual tax and/or registration fees.
top

How do I go about getting my car fixed or what if my car is totaled?

Most collision claims can be resolved by dealing directly with either your own insurance company or the at-fault driver’s insurance company. If you use your own insurance to fix the car, you will be responsible for paying the deductible, which you then need to recover from the at-fault driver’s insurance company. The insurance company will pay for your repairs to your car (if the repairs do not exceed the value of the vehicle). If your car is totaled by the accident, you are entitled to the fair market value of your vehicle plus tax and title.
top

How do I get my car fixed if the at-fault driver has no insurance?

If you discover that the driver causing the accident does not have insurance, you are responsible for getting your car fixed by using your Uninsured Motorist Coverage (UIM). (States that have ‘no fault’ insurance laws usually require you to carry uninsured or underinsured motorist coverage.) We do not recommend trying to collect from the at-fault driver, because this may impact your claim for personal injury. If necessary, we will advise you how to proceed.
top

What about a rental car?

By law you are eligible for a rental car from the insurance company for the person responsible for the accident while your vehicle is being repaired, or until you receive a check for the value of your totaled vehicle. If that insurance company takes some time accepting liability for the accident, you should receive compensation from the insurance company for every day you are denied use of a rental car. You should insist on a substitute rental car equal in value to your car involved in the accident. A few details to remember: Your own insurance should cover you while you are using the rental car, but we highly recommend that you verify this with your insurance agent. Most rental agreements only allow you to drive the rental car, unless you agree to pay extra for multiple drivers.
top

What does it mean when my car is ‘totaled?’

When the insurance company determines that the cost of the repair is more than the value of the vehicle, it is called a ‘total loss’ or ‘totaled.’ The insurance company is then expected to compensate you for the fair market value of the car and to pay you that amount within 30 days of your claim. You can expect the use of a rental car until you receive a reasonable offer and payment. Sometimes a claimant and the insurance company can be at odds over the fair market value of the totaled vehicle. If you believe your vehicle is worth more than the offer, check with a reputable used-vehicle resource such as the Kelly’s Blue Book, or AutoMax.com to determine the value of your vehicle and send that information to the insurance adjustor. Factors that may determine the value of your vehicle include mileage, general condition before the accident, and options. If you owe more money on your vehicle than the fair market value, the insurance company is under no obligation to pay that amount.
top

Do I have to pay for towing and storage of my vehicle?

The insurance company for the at-fault driver is usually responsible for all towing and storage costs associated with the accident. Storage fees will be paid until the insurance company decides to repair or total the vehicle, at which point the insurance carrier will move it to the repair shop, another storage area or a salvage yard. You will be contacted before your car is moved from the storage area. (If you do not allow the insurance company to move the vehicle, you assume the storage costs from that point forward. If you want to keep the vehicle, you are responsible for towing it to the location of your choice). Be sure to remove your personal items from the vehicle prior to its relocation.
top

Can I choose where I want my vehicle repaired?

You have the right to choose who will repair your vehicle. Many insurance carriers evaluate the cost of the repair by their own property damage specialists and then work with your chosen shop to ensure the repair is completed. You are not obligated to use the insurance company’s ‘authorized’ repair shops.
top

What if I just replaced the engine or installed new tires on my car?

With an older vehicle, it is difficult to recover the costs of recent repairs, such as a new engine, transmission or tires. The insurance company expects that all such parts are in good working condition at the time of accident. A new set of tires or a replacement to the drive train will only marginally increase the value of the vehicle. Sending your receipts of recent repairs to the adjustor may help with a reevaluation of your vehicle.
top

Does the insurance company have to use OEM parts with the repair?

The insurance company is expected to repair the car to its pre-accident condition. If your car is several years old, the repair shop may use reconditioned or non-OEM (original equipment manufacturer) parts. However, you have the right to insist on OEM parts with your repair, if they are available.
top

What other issues should I be aware of during the repair?

In some cases, the insurance carrier can claim that your vehicle was damaged prior to the accident or that a mechanical failure is unrelated to the wreck. In this case, you may need to enlist the help of an independent mechanic or body shop to evaluate the damage or cause of the failure. Statements supporting your position should be sent to the adjustor with a request for a reevaluation.
top

What if the insurance company wants to total my car, but I want it fixed?

Under the law, the insurance company has the option to either repair your vehicle or declare your car a total loss and provide you fair compensation. If your car is totaled, some insurance companies will allow you to keep the car, but will deduct the ‘salvage value’ of the vehicle from the check.
top

If you need auto accident attorneys, contact us today.