Expert: Claims Guy - 8/18/2008

Question
My wife and I were in an accident two weeks ago. The driver that hit us did so
while we were stopped at a stop sign, he was doing 40 and never hit the
brakes. Our 96 Camry is, of course, a total loss. He had also been in an
accident 10 days prior to hitting us and his insurance company was slow to
respond to our calls, taking ten days to contact us. We only have liability so
our insurance was not helpful of course. After 10 days his insurance calls us
and says that they will only pay for the first tow and 5 days of storage at the
lot it was sent to. We had already talked to a lawyer and the tow yard and
both of them said that in a total loss the insurance company was totally
responsible for these fees and moving it to their own location. Not only did
they refused to acknowledge responsibility for the fees, at the 10 day mark
they hadn't even sent anyone out to look at the car, saying it would be a few
more days. Are they not responsible for these fees? We had to get a rental car
going on two weeks now, aren't they also obligated to cover that?

Answer
Hi Gabriel.  I'm sure you must be frustrated.

In every state, a claimant has the obligation to mitigate his/her damages.  This means that you cannot leave your vehicle in a storage facility running up storage bills indefinitely and expect the liable party to pay for it.  Your obligation is to act "as a reasonable person would under the same circumstances."  In my opinion, you have acted reasonably.  You made attempts to call the insurance com pany and they were slow in responding.  They were slow; not you.  They should cover storage in full.  They should also pay the first tow and another tow to the storage free location.  Now if you had let this go on for 20-30 days without moving the car, that would not be reasonable.  

At this point, you should demand to speak to the supervisor and demand that they move the car to a storage free location immediately.  As long as there is no liability issue, they should move the car and make you a total loss offer within a few days.  And yes, they are responsible for covering your rental expenses for a reasonable amount of time.  In the case of a total loss, this is normally from the date of accident until about 3-5 days after they make you a total loss offer.  This allows you 3-5 days to buy a replacement car.

If you do not receive fair treatment, continue to complain to the supervisor's manager.  You  will likely get what you want, unless this is a small and unscrupulous company.  Most large insurers will be fair.

As a last resort, you can complain to your state insurance department or file in small claims court.  Small claims court is pretty easy to handle and the insurer will almost certainly pay you off rather than send an attorney to small claims court.  Or, if you hire an attorney for injuries (if applicable) the attorney can collect the storage for you.  Good luck!