Expert: Anne - 12/2/2008

Question
I was in an accident, it was the other drivers fault. I drove my vehicle away but later found their to be radiator and A/C damages to vehicle. Other Driver's insurance is stateing damage is not related to accident because radiator is not marked up. However internally the transmission fluid container that runs through radiator is broken causing fluids to intermingle.  I contacted my insurance also who is also making claim this damage did was not caused by accident. However it was not there before accident. What can i do?  It is expensive to replace and i can't drive car without it being fixed.

Answer
Prior damage claims can be a hassle. You have a duty to prove that you did have a loss. This could be tricky, but you have enough there. The way this should work is like this.

You have a duty to show that a loss existed (the accident should take care of that). The burden shifts to the insurance company (your insurance company) to show that the damage did not occurred how you claim or that there is no coverage for the loss (like an exclusion applies).

You can file a complaint with the office of the insurance commissioner of your state for failure to show that the damage did not occurred how you are claming (either they show evidence that it is impossible to have occurred how you claim or that you crash the car somewhere else). They have a pretty heavy burden here, and the office of the insurance commissioner (or department of insurance, depending on your state), will have to see more than a theory.

You can also go directly against the person who hit you in open court or small claims court. Again, they will have to show to a judge that the damage did not occurred the way that you are claming. It is pretty hard to conclude that after an accident, no radiator damage could have possibly occurred. If you do prevail in court, the insurance company will have to pay.

Also http://www.auto-insurance-claim-advice.com/ for more information.


Good Luck
Anne