Expert: webfoot - 6/15/2006

Question
Hello! An answer to your question:

I was rear-ended almost 2 weeks ago. The other party's insurance agency assumed full liability, and the adjustor totaled my car. They offered me $5600 for a 2001 Ford Focus with only 50,000 miles. Since the accident, I've experienced
neck and back pain, which has required several treatments at the chiro (the visits are being covered by my auto insurance policy's medical coverage). Additionally, they only gave me a rental car to use for 10 days. I turned it in
yesterday, and now I am forced to bum rides, borrow cars, and ride my bike to work. I am unable to find anything used that is available in the area for the amount of $$ they are offering. My car only had 3 payments left on it when itwas wrecked. Is there any way, in your opinion, that I can get more $$ from the other insurance company for my pain, suffering, and inconvenience? If so, how do I go about this, and who do I deal with at the insurance co.? Do I call, or write?

Currently, my case has been turned over to their total loss department, which deals only with the cost of the totaled car, and I don't even know where I would go to resume this fight.

I refuse to send them the title to my car (I just paid off the remainder of my loan last week after the accident) and close the case before I've investigated all my options. Thank you VERY much in advance for your help!

Corrine


Answer
I'm sorry to hear that you were in an accident Corrine.

The first thing that you'll need to understand is that the vehicle damages and your injuries are separate issues.

The vehicle.  I have no way of knowing if $5,600 is fair for your vehicle as I have not seen it.  I did do a quick search of autotrader.com and found 34 like yours with less than 60k miles.  The average price was $5,729 which is pretty close to what they've offered you.  Remember that the insurance company owes you the actual cash value for your car.  The current market availability is not something that they can control.  The actual cash value represents what the car would bring on the open market if it were sold. The insurance company has no control over the fact that another car just like yours may not be available right now.  You may have to search for a different kind of car or expand the market area.  
Once a vehicle has been determined a total loss and an actual cash value offer has been extended to the owner, the insurance company no longer owes for any rental.  They are trying to pay you the ACV for your car which settles the property damage issue.   As far as refusing to give them the title, that's up to you but that is not an affective negotiation technique.  No title = no check.
The best ways to negotiate a higher settlement is if you have recent repair (not maintenance) receipts that can justify a higher amount or if you can show them market documentation that proves that your car is worth more.  Keep in mind that what a dealer is asking for a fully reconditioned (no scratches, dings, dents, burns, stains, leaks, new tires, possible warranty) car sitting on their lot is not the actual cash value.  An asking price is an asking price and they usually end up selling those cars for 10-20% less.   
One reason in fact that the asking prices are so high is that online services such as autotrader.com default to showing the vehicles in order of price with highest coming up first.  Dealers will intentionally post a high price so their cars are the first to come up on a web search.  If you call these dealers, you will find out the real price.

Hopefully, you're vehicle is not sitting in a tow yard accumulating storage charges. You have the duty to mitigate (minimize) additional charges related to the claim.  When folks refuse to release the vehicle from a tow yard because they don't like their settlement, those additional charges that accumulated can be deducted from that settlement.  Hopefully you have allowed the insurance company to move the car or it is at least sitting somewhere without storage charges.

Your Injuries:  If you have valid injuries, the insurance company owes you for pain and suffering.  This, you should ask for in writing and you will be required to give them access to the medical records.  Keep in mind that many chiropractors are in the business of inflating insurance claims.  They are also not doctors.  I have handled many claims where people over treat through chiropractors and even their attorney is unable to get excessive charges covered. I have not found a chiro yet who won't accept 50 cents on the dollar to settle a bill and this tells me what their services are really worth.
The claims where I am able to justify a higher settlement involve people who go to real doctors and follow a treatment guideline through that doctor or a prescribed physical therapist.  Though there are exceptions, most soft tissue injuries tend to heal on their own in a few weeks.

As far as hiring an attorney, this depends on the individual situation.  There are good ones and bad ones.  You'll pay the attorney 33-50% of the total settlement.  The higher the fee means the weaker they believe your case is.
It doesn't hurt anything to see what the insurance company is going to offer you before seeking out the advice of an attorney.  The attorneys don't want you to do this for two reasons.  They don't want you to say something that will lower the offer and they don't want you to know what the offer would have been without the attorney services.  That way you won't know if you're actually ending up with less money than you would have on your own.  The decision there is yours.

I do recommend that you handle all of your demands in writing and send them certified mail, return receipt requested.  This will not only protect you, but will let the insurance company know that you are serious.  I would also recommend that you do not accept any settlement until you are sure that you are healed.  You know your own body better than anyone else.  In most states, you have at least two years to file suit if needed.

Good luck and I'd appreciate your feedback and any additional questions.