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Auto Insurance Claims/Texas - Drunk Driver DWI


QUESTION: Tonight, my car was parked on the side of a road (legally) and a drunk driver ran into the driver's-side rear bumper. I wasn't in the car. There seems to be a lot of damage and luckily the police were around to take them to jail and get their insurance info for me. I have already started the claims process with my insurance company. My concerns are:
1. The insurance won't total my car. This will mean that I won't be getting money for depreciated value from possible frame damage.
2. Their insurance has expired and my insurance company won't cover the cost of repairs because I only have basic liability.
3. Their insurance will only cover the cost of the repairs and I have to pay out of pocket for a rental car. I've heard of people unable to get a rental car unless they have a shop working on it a minimum of 4 hours a day (progressive insurance).

I'm now asking what to do/who I need to contact in order to move forward. Would you suggest getting a lawyer? How easy is it to locate a DA for a county so that restitution can be requested?

ANSWER: Based on your questions, I would suggest getting an attorney.  

1.  You are the owner of the vehicle, period.  If the insurance company considers it a total loss, then you can fight that if the vehicle doesn't qualify as a salvage vehicle, but you have to know how and be aware that the insurance company has NO CLUE how total loss and salvage titles work.  They simply set a threshold and tell the adjuster to total it if it hits the damage threshold.  Totaled and Salvage are different, but again, adjusters aren't trained to know this.

2.  It is sometimes hard to determine if the other party had insurance or not.  There are a couple of tricks to try (call the municipal court and find out if they proved up insurance after the fact).  If the owner and driver are different, then there is a chance there is other insurance that will cover your damages.  If the driver was a college student, his parents policy will cover it. . . etc. . .

3.  If the other party has insurance, then they technically have to pay whatever the negligent party legally owes you, which is ALL of your damages, including rental expenses due to the loss of use of your vehicle.  If your vehicle was not drivable, then he owes loss of use from the date of accident, if it was drivable, then he owes for the "reasonable repair time".  Tort (negligence) law seeks to put you back in the same position as you were in prior to the accident.

Keep in mind you don't technically have a claim with his insurance company, you have a pending lawsuit against the negligent driver.  Until valid insurance has been provided, it is the negligent party/ies you should be pursuing.  I consult attorneys and individuals on these types of cases on a weekly basis.  If you need more help, I am happy to assist.  Information is always free at Petty Details, LLC!

Justin Petty


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

QUESTION: Thank you for your quick reply. You have been very helpful with your reply. I have filed a claim with their insurance and found that their adjuster won't be in contact with me for up to 3 days. The adjuster will have to approve my rental car before I get it according to them :( I also found that the adjuster will throw out a number and try to make me roll over with whatever they have to offer. I have also conducted research with total costs from other parties with the same car and damage and found that parts and labor ranges from $1700-2300 to fix my car. My new question is where does "bad faith" come into play here? If they offer me less than what I know I need to repair plus rental, missed work and towing expenses? They are only offering 1 free tow and it's going to require me to take it out of the tow yard and to a shop via tow. Can they do this? I'm currently looking into parts for my car to pay under the OEM price to get some money back in the event that what they have to offer is not enough.

ANSWER: Bad Faith is not a claim you can pursue against somebody else's insurance.  Bad faith is essentially a breach of contract.  In a third party context (like your claim), there is no risk of the company acting in bad faith because you do not have a contract with them for them to breach, you are a third party to the contract between them and their insured.

NOW, there are some exceptions where a third party could bring a bad faith action, but it is complicated, and I doubt you have a good one.  If your claim is not handled properly, it would be because of deceptive trade practices and/or unfair claim settlement practices.  These are the areas where the insurance company can get in trouble with a third party.  These are complicated, too and normally an attorney won't get involved unless the damages start nearing 20K.

So, on a claim like yours if the insurance carrier for the at fault party does not pay for all the damages you can prove, the only choice you have is to sue their driver (negligent party).  In Texas, small claims is pretty cheap for the person suing.  Provided the negligent party tell his carrier he has been sued, this would force the insurance company to "settle or defend" which is the contractual obligation they have to their insured.  Many times, the threat of having to spend a little money to defend a suit will cause a claim to be transferred to a more knowledgeable handler who will minimize the risk and settle the claim (I was the adjuster that problem claims got brought to when I was working for carriers).  

I hope this helps, and thanks for the good review.

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

QUESTION: Thank you for your previous answers. A new development in this predicament has come about. The insurance company sent a 3rd party appraiser who sent an estimate for the visible damages, then sent it to the phone adjuster of the insurance company. The shop's initial estimate was ~8k (parts and labor). The "appraiser's" estimate was ~4k. Major parts that are visible was left out to not exceed the damage threshold (drive shaft, wheel and suspension). This is even before inspecting for frame damage. Now according to the insurance company's phone adjuster, they will cut a check for the initial estimate, then the shop will need to send a supplement request to the same appraiser who will then send it to the phone adjuster. I also inquired to the adjuster about diminished value. So here are my questions..The main question is, is this considered unfair claim settlement practice? Also, the phone adjuster says that the case needs to close and the car needs to be fixed before discussing diminished value. Does this sound right? Furthermore, the insurance company is only allowing a $29/day allowance for travel during the repair interval. Luckily, a family member is letting me borrow their car. I'm having the shop do a tear down and check for frame damage. If they find any, should I request an immediate total loss evaluation? And should I even cash the first check? These people are super shady. What are my legal remedies for this case? My guess is that they excluded parts during the visible inspection so it won't hit the damage threshold which was at 90% from the shop's estimate. My trunk floor is bent and the drunk driver hit my tire so the rear differential might have been damaged.

The insurance company has no clue how to calculate diminished value, and they don't know how to repair vehicles, either.  If you trust the shop, let them handle the issues with repair cost.  The person that hit you owes for the cost of repair.  The "independent" is not independent, he/she works for the insurance company, even if they are a separate company, they have a contract to perform appraisals in accordance with how the insurance company wants it done.  

Inherent diminished value can be calculated at the moment of the wreck, and repairs are not necessary to determine the amount of inherent lost value.  The diminished value calculation assumes that repairs will be performed properly, and if they are not, that is a problem with the shop and you would sue to get the repairs done within expected standards.  

You are the person in charge of the claim and the vehicle is yours.  I suggest you call me, you have a lot to learn and it may be too late for me to give you the help you need.  If you signed a repair authorization, you are at the mercy of the shop.  I cannot give you legal advice, and based on your questions, you need an attorney.  Handling a damage claim properly is hard, that's whey there are not many people that do what I do.  I hate to say it, but you'll never get good and fast enough help trying to do this on your own.  It is just too much to learn in too short of a time.  I will discuss your case for free, but you have to call.  I can't handle your claim via an expert forum.


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Justin Petty


Challenge me! I promise that I will provide you with the most honest answer I can muster, and I will base it on nearly 20 years of complex claims experience. My strength is shooting it straight and seeing through BS. I do not bluff and I can tell when somebody is. I've handled claims in almost every State in the U.S. and adjusted claims and consulted attorneys and CEO's on recovery and special claims tactics for over a decade. I am the founder and President of Petty Details, LLC. We provide the highest quality claim services to insurance companies, attorneys and individuals all exactly in the same way, by paying attention to the details and doing the right thing.


Nearly 20 years of combined claim company management, litigation, all lines adjusting, claim auditing, damage assessment, subrogation, small claims, tort recovery, collection, skip-tracing, tactical investigations, and contribution claim recovery experience across the United States of America.

NASP (National Association of Subrogation Professionals) (Auto Insurance Expert) Diminished Value Appraisers Group (LinkedIn)

10 years experience in writing and developing technical claims correspondence for litigation and unique scenarios at insurance companies and as a consultant to attorneys assisting with legal briefs and research. 42 published articles relating to auto insurance and claims. Self Published e-books entitled "How Much is My Injury Worth" and "Diminished Value - How Do I Get Paid?".

School of hard knocks, 3 years college, NO DEGREE, years of real world experience running a claims service company and adjusting claims for carriers. Speaks English and Spanish, Limited Portuguese & Italian.

Awards and Honors
Platinum Author ( All Lines Adjuster (TX, 1998 - 2008) TX Public Adjuster (2009 - 2011)

Past/Present Clients
State Farm Insurance, Endeavor GA, MileMeter Ins., American Recreational Markets, Gainsco Ins. Co., Safeway Ins., Home State County Mutual Insurance, Old American County Mutual Insurance, FCCI, Farm Bureau, Liberty Mutual, and Pronto General Agency, LTD just to name a few! On top of insurance companies and attorneys, I have personally helped thousands of accident victims with the difficult and stressful process of navigating their claim to a successful resolution.

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