Who's at Fault? & problems with my insurance company
Posted 07 December 2012 - 06:58 AM
Posted 08 December 2012 - 05:25 PM
Let's start with dealing with your own insurance company.
You're insurance company is contractually obligated to pay to repair your car back to it's pre-accident condition. If they don't, it's breach of contract. Unfortunately, you don't just get to run out and file a lawsuit against your insurance company.
Look toward the end of your policy under General Conditions or General Provisions and you will find that your contract obliges you to avail yourself of all of the terms of the policy before you take any legal action against your insurance company.
If you don't agree with what the insurance company is doing about your repairs your first step is to invoke the Appraisal provision of the policy which is located toward the end of the section on physical damage to your vehicle. Read that and it will tell you what you need to do.
You can also file a complaint with your insurance department. No guarantees there.
Another thing you are likely to find in that section is an exclusion for diminished value. In other words your own insurance company doesn't have to pay for it.
In Black v. State Farm Mutual Automobile Ins. Co., 101 S.W.3d 27 (Tenn. App. 2002), the Tennessee Court of Appeals refused to apply diminished of value in Tennessee automobile policies finding the wording unambiguous and limiting the insured to repairs. That was before insurance companies started covering themselves with the exclusion.
Next I'll discuss the potential claim against the scooter operator. Under negligence law, when a driver makes a left turn and gets hit by an oncoming vehicle that driver is presumed to be 100% at fault for the accident because failing to yield and getting hit is negligence. That the scooter shouldn't have been in the bike lane may only relieve the driver only partially of negligence but not by much. Look at it this way. What difference would it make whether it was a scooter, a bicyclist, or a pedestrian? Making a left turn and hitting any of those would make the driver at fault. Traffic law and negligence law are two different things. Getting a ticket dismissed doesn't necessarily absolve the driver of negligence.
You do, however, have the option of suing the operator of the scooter for your diminished value and see how far you get in court. Most courts have held that auto insurance policies cover third-party claims for diminution of value since the measure of damages in tort claims, which the insurance covers, is the difference in the property's value before the loss (the damage) and after the loss. The plaintiff must provide evidence of the diminished value.
Even if you win, you are only likely to win a percentage of the diminished value commensurate with the scooter operator's percentage of negligence as long as your percentage of negligence is less than his percentage of negligence.
On May 4, 1992, the Tennessee Supreme Court decided McIntyre v. Balentine in which the court adopted a system of modified comparative fault. The court said: "[w]e therefore hold that so long as a plaintiff's negligence remains less than a defendant's negligence the plaintiff may recover; in such a case, plaintiff's damages are to be reduced in proportion to the percentage of the total negligence attributable to the plaintiff."
Warning: Legal issues are complicated. Explanations and comments here are simplified and might not fully explain the ramifications of your particular issue. I am not a lawyer. I do not give legal advice. I make comments based on my knowledge and experience. I guarantee nothing. If you act on my comments without the advice of an attorney, you do so at your own risk.
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