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Who's at Fault? & problems with my insurance company

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A family member was invilved in an accident while driving my car. He was turning into oncoming traffic & was struck by a scooter. He was cited for failure to yield. He went to court & it was dismissed because the scooter was not suppose to be in the bike lane. My insurance was suppose to be researching this. They have already paid the other party half of benfits. I have found 2 legal links and have sent it to my insurance that in TN by law a scooter is not allowed to park or drive in the bycicle lane, the other a scooter is not allowed on interstate or highway & have stated to my insurance the claim should be on the other party. Also the tow company that towed my car was suppose to be doing an estimate over a period of 22 days & never turned an estmate in, the insurance adjuster wanted it moved to a shop. My cara is fixed, not in pre-accident condition. The adjuster & shop say the gaps to the hood, doors and trunk will be okay. The shop also stated that the exhaust that was suppose to be replaced was bent so they bent the damage out. Is this suppose to be the other party at fault & how do I get the proper amount of money from my insurance for wht is not fixed on my car, the gaps lower the value of my car and basically it got the frame and they can not realign it so therefore it is a total loss, How do I deal with the insurance about this?

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You've got several issues.

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."

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