Expert: Richard Hixenbaugh - 3/19/2010

Question
QUESTION: Hi I was in a 4 car wreck that was not my fault and at fault driver is underinsured. My insurance company paid for my car to be repaired but denied to pay diminished value and told me to talk to the at fault party. Long story short I finally got the at fault party to agree to pay diminished value to me but only a pro rata share split between me my insurance and two other insurance co.
Now since my insurance will only get a portion of what they paid to repair my car will they try to subrogate my portion of the settelment.If not under the Make Whole doctrine would they have to give me the difference in what my claim was and what I received from their subrogation .

Thanks

ANSWER: Hi Vivian,

The pro-rata share that your insurane company will receive is the subrogation. However, your insurance company should not receive anything until you receive your diminished value. Under the Make Whole Doctrine, you have a priority right to be made whole that sperseeds yr insurance company's right to subrogation. This means that your insurance comapny should step aside. Then your diminished value claim will be pro-rated along with the other property damage claims. By removing your insurance company there will be fewer claimants so your share of the pie will be bigger. Your insurance company does not stand equal with you. Their claim is subordinate to your claim. This si due to the fact that an insurance company is a "Risk Bearer". This means they bear the risk of not getting reimbursed. Since you are not a risk bearer you get to present your unpaid losses that you could not collect from your insurance policy and be made whole ahead of your insurance company.

I hope this helps
Richard Hixenbaugh

---------- FOLLOW-UP ----------

QUESTION: Hi Richard
Thank you, that is how i interpreted it. But when I spoke to my insurance company about it they acted like I didn't know what I was talking about and insist they have full right to subrogation even before me. If they subrogate at the same time will they have to pay me the difference of my claim and the amount i receive?
I have another question. If i sign a release for property damage and loss of use release from the at fault insurance company will my collision insurance still cover any damages that are found at a later date as a result of the wreck?

Thanks

Answer
Hi Vivian,

If your insurance company and you are look at as being equal and are each paid a pro-rata share, your insurance comapny will not pay you the difference. It is up to you to convince both insurance companies that you are to be made whole first without regard for your insurance company's right to subrogation. If you sign any release forms you would be barred from any further claims.

To help convince the insurance companies of your first right to be made whole, visit http://www.nexsenpruet.com/assets/attachments/284.pdf . This document that was written by an attorney explaines in detail the insureds right to be made whole that has priority over their insurance companies right of subrogation. It includes case sites as well.

You should print this document  save it to your computer to send to both insurance companies along with a letter telling them that you should be paid before your insurance company not along side them.

I hope this helps
Richard Hixenbaugh