texas property damage guide€¦ · in terms of getting cars repaired or replaced. after a car...

TEXAS

PROPERTY

DAMAGE

GUIDE

Dealing withthe InsuranceCompany Afteran Accident

Mark A. Anderson

TEXAS PROPERTY DAMAGE GUIDE

Dealing with the Insurance Company After an Accident

Mark A. Anderson

Introduction.............................................................................

Make a List..............................................................................

Take Pictures............................................................................

Contact Your Insurance Company.............................................

Contact the At-Fault Driver's Insurance Company.......................

Request a Rental Car...............................................................

Renting a Car on Your Own....................................................

Total Loss................................................................................

Total Loss Law........................................................................

What if the Offer is Too Low?...................................................

What if You are Upside Down on Your Loan?............................

Tips and Tricks if You are Upside Down on Your Loan................

Diminished Value.....................................................................

Wrap Up.................................................................................

Free Book for You.......................................................

About Mark A. Anderson.........................................................

Contents

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Introduction

My name is Mark A. Anderson. I am a personal injury attorneywho represents victims who have been injured in car accidents.Because my clients also usually have a damaged car, I havelearned a thing or two about dealing with insurance companiesin terms of getting cars repaired or replaced.

After a car wreck, one of the first things you must do is get yourcar repaired (if it’s repairable) or replaced (if it is “totaled”). Ifyou were injured, you are also dealing with your injuries. Butwithout a working car, or a replacement rental car, it is toughto evenmake it to thedoctor. Imustwarn younow that in dealingwith insurance companies, you will need both knowledge andpatience. I can’t help you with gaining patience, but hopefullythis guide will help you gain the knowledge you need tosuccessfully resolve your property damage claim.

Now, let’s get started.

Texas Property Damage Guide

Mark A. Anderson

Make a List

First of all, make a list of all damage to your vehicle. Some damageis obvious and some is not. Be sure to write everything down,especially the not so obvious damage, like noises you may behearing under the hood or a leak from the engine. When you takeyour car in to obtain an estimate or to get it repaired, a detailed listis a great reminder to make sure that every damaged item isultimately repaired.

It is a good idea to further document the damage to your vehicle bytaking pictures. Digital cameras are best, but a cellphone equippedwith a cameraworks just fine too. If youdon’t haveadigital camera,just buy a disposable camera and take the pictures.

Make sure you also list the damaged property that was not part ofthe car or did not come stock with the car (things like brokensunglasses or aftermarket wheels), but be aware that the insurancecompany may not cover personal property damages unless youhavea receipt for the items. It is always agood idea to keep receiptsfor any items of value.

If your vehicle was towed from the accident scene, make sure youhave the name, location and phone number of the towing service.When you call your insurance company, you will need thisinformation. If youwere transported to a hospital by anambulance,you might not know where your car was taken. If that is the case,you can call the police department who investigated your accidentand obtain that information. It should also be included on theaccident report filled out by the responding officer, although thesereports are not generally available until a few days after theaccident.

IMPORTANT NOTE: Make sure you tell the insurance companyright away if your car has been towed or is at a storage facility.


The insurance company should pay for the towing and storagefees once liability for the accident has been accepted, but youneed to make sure the insurance company knows the car hasbeen towed as this can actually make them move your claimalong faster.

It is also important to remember that you have responsibilities aswell. This is calleda “duty tomitigate damages.” Thismeans thatif there is something that you can do to reduce or end thefinancial obligation of the insurance company, then you have totake those steps. This most commonly happens when a vehicleis at a storage lot. If the vehicle is incurring storage charges of$50 per day while it is sitting there, then you have to take stepsto get this issue resolved quickly. If you don’t do anything anddon’t notify the insurance company for a month, it probablywon’t be legally responsible for all those storage fees.

Take Pictures

I know I have already mentioned that you need to take picturesof all visible damage to the car and personal items that weredamaged, but this is so important that it deserves repeating!When taking photos of your car, make sure that you not onlytake close up shots of the damage, but also stand about 20 feetaway and take a photo of the entire side of the car that isdamaged.

If you are unable to resolve the car damage claim without filinga lawsuit, you will need these pictures of your vehicle. Plus, ifyou are hurt in the accident and are asserting (or arecontemplating asserting) a personal injury claim, pictures areabsolutely the best kind of evidence to support your claim. If youare hurt, it is a great idea to take pictures of your injuries(bruises, cuts, casts…) for any future injury claim youmaymake.And don’t settle for just a couple of photos. Bruises and scars

Mark A. Anderson

look different over time. Be sure to continually take photographs.You will be happy you did so later on.

Contact Your Insurance Company

You have a duty to notify your insurance company after you havebeen involved in anaccident. This is a requirement in your insurancepolicy. So one of the first things you should do once you get homefrom the accident scene or the hospital is to call your own insurancecompany and report the accident. The insurance company that isactually responsible for paying to repair or replace your vehicledepends on who was at fault for the accident and what kind ofinsurance coverage you carry on your own car.

You will need to confirm what kind of coverage you have on yourvehicle when you call in your claim. If you carry collision coverageon your vehicle, then I suggest you go ahead and instruct yourcompany to repair or replace your car. It is my experience - at leastwith property damage claims - that your own companywill treat youbetter and deal with your claim faster than the other driver’sinsurance company, because you have been paying premiums to itevery year. The company has a duty to treat you fairly. Plus, if youhave collision coverage, your own company must repair and/orreplace your car regardless of who was at fault. If you carry rentalcoverage on your vehicle, your own car insurance carrier may alsobe able to get you in a rental car faster than the other insurancecompany.

On the other hand, the other driver’s insurance company owes noduty to you whatsoever and won’t even get moving on repairingyour car until it is are absolutely sure that it was their client thatcaused the wreck. Oftentimes, the other driver’s insurancecompanymoves very slowly in conducting its own investigation andsometimes it will just flat out deny your claim based on the story ithears from its own insured.


NOTE: If you use your own insurance company to repair your car,then it will move faster in resolving your claim, but you will becharged a deductible. If the other driver is indeed at fault, yourcompany will go to the other driver’s insurance company andcollect the money it spent on repairing your car. In doing so, statelaw requires that it also recover your deductible for you. Therefore,assuming you are not found at fault and the other driver had carinsurance, you eventually will receive your deductible back after afew months.

Contact the At-Fault Driver’s Insurance Company

If your car accident was the fault of the other driver, the next stepis to report the accident to the at-fault driver’s insurance company.You should have received the insurance information at the scene. Ifyou didn’t obtain the information at the scene, but the police werecalled, then the accident report should contain that information.Sometimes, there is a delay in the release of the accident report. Ifthat is the case, try to obtain the insurance information by calling theinvestigating officer or the police department if you did not receivethe card of the investigating officer at the scene.

The other driver’s insurance company will want to know a lot aboutthe accident. They will ask a ton of questions and the initial call toreport the claimwill take about 20minutes.Many times, an adjusterwill later be assigned to the file and you will receive a call with a lotof follow up questions. This is when I see the adjuster request thatyou give a recorded statement. Do not give the at-fault driver’sinsurance company a recorded statement. You are not required toprovide a recorded statement and it will be used against you. If youhave any injuries whatsoever, be careful about what you tell theadjuster. Do not minimize or exaggerate your injuries. Even if youthink you will get better soon, you can’t make that assumption.

Mark A. Anderson

Request a Rental Car

If your vehicle is not drivable after the accident, you should requesta rental car from the at-fault driver’s insurance company. If your caris repairable, then you should receive a rental car for the timeperiod that your car is in the repair shop. If, however, your car isimmediately deemed a total loss, then the insurance company is notrequired toprovideyoua rental car. Butmyexperience is that abouthalf the time, you can get the at-fault driver’s insurance company toauthorize a rental car in a total loss situation.

If you are not providedwith a rental car immediately after thewreckor have to wait a period of time before the other driver’s carrierprovides a rental car and your vehicle is not drivable, then you aretechnically entitled tomake amonetary claim for “loss of use” of thevehicle for the time that you are without a vehicle. However, this isan uncommon claim.

Again, if the at-fault driver’s insurance company is dragging its feeton providing you a rental car (while it tries to contact the driver thathit you or otherwise conducts its so-called “investigation”), youshould contact your own insurance company to see if you haverental car coverage on your policy. As I have mentioned, yourinsurance company will get paid back by the other insurancecompany later, when the other insurance company acceptsresponsibility for the wreck (that is assuming the other driver was atfault).

Renting a Car on Your Own

If your vehicle is drivable, you should obtain your own writtenappraisal for repairs to the vehicle. Take the initiative to get thisdone as soon as possible so you won’t end up waiting indefinitelyto hear from the adjuster. You can contact a dealership or any local


body shop to get an independent repair estimate. You should visitat least two repair facilities so you can compare estimates.

The at-fault insurance company is required to pay for the repairs toyour vehicle. Typically, a field appraiser will be sent to do a basicvisual inspection of your vehicle wherever it is located. It is notuncommon for the inspection to result in a low-ball repair estimate.That is why it is crucial to obtain your own repair estimate from areputablebody shopor collision repair center.Ultimately, youhavethe right to get your car repaired at the facility of your choice or youmay use a facility the insurance company recommends. No matterwhere your car is repaired, if any subsequent damages/costs ofrepair are determined to be neccessary by the repair facility, thena supplement to the repair estimate will be presented to theinsurance company.

If you choose to use one of the insurance company’s preferredrepair facilities, make certain you provide them with your list ofdamages as referred to in the Make a List section above.

After your vehicle is repaired, don’t hesitate to take it back to therepair facility immediately if there are any additional problems orrepairs it did not perform. The longer youwait, the less likely it is thatthe insurance company will cover the additional repairs.

Total Loss

A carwill be considered “totaled” if the cost to repair it approachesor exceeds the fair market value of the car. Most insurancecompanies will total a car when the estimated repair cost reachesa certain percentage, usually around 80%, of the car’s marketvalue. Each insurance company has a different threshold fordeclaring whether a car is a total loss. The insurance companies do

Mark A. Anderson

not want to take a risk and pay for repairs if the costs are too nearthe car’s market value. If the repairs turn out to be more expensivethan first believed, the insurer may end up paying more for repairsthan the vehicle is actually worth. (This happens when the initialestimate does not cover everything, as some damage cannot beseen until the repair work is underway).

It is also important to understand the concept of “salvage value” inthis context. When you accept a settlement for the total loss of yourcar, the insurance company essentially buys your car. They willrequire that you sign over the title to your car. The title is thenreissued as a “salvaged” title, reflecting that the vehicle waswreckedandvaluedasa total loss. The insurance companywill thentry to recoup some of the money they have paid you by selling thesalvaged vehicle to a junkyard for parts or to anyone who wants torepair and rebuild the car themselves. Sometimes the amount thatthe insurance company can sell the salvage for is significant. Theinsurance companywill give you the option to buy the car backwitha salvaged title. If you decide to do that, the amount that theinsurance company could have made from selling the salvagedvehicle will be deducted from the amount you receive from theinsurance company.

Remember, once a car has been totaled, the State of Texas requiresthat it have a “salvaged” title so that everyone knows it has beentotaled. Obviously, a salvaged title significantly decreases theresale value of any vehicle.

Total loss law

The law does offer some guidance about how to calculate ordetermine the total loss value. The well-settled law in Texas is thatthe at fault party, through their insurance company, has to pay thedifference in market value of the vehicle immediately before andimmediately after the accident. The termmarket value is defined as:


The amount that would be paid in cash by a willing andunpressured buyer who desires to buy, but is not required tobuy, to a willing seller who desires to sell, but is under nonecessity to sell. (Texas Pattern Jury Charge 11.2).

A “willing seller” is defined as one who is willing to sell, isunpressured to do so, and who is knowledgeable about the fairmarket value of the property they are intending to sell.

If your vehicle is totaled, then you are entitled to its value at the timeimmediately prior to the accident. You will want to determine thevalue of the vehicle based upon its mileage, condition, year, model,etc. A few websites that I have used to evaluate market value areKBB.com, Edmunds.com, Autotrader.com and NADA.com. Isuggest you look at all of these sites and come up with an averagevalue. Other sources are the local newspaper classified ads,Craigslist andeven local autodealers.While researchingyour car’svalue will take work, it often pays off to dispute the insurancecompany’s assessment of market value.

What if the Offer is Too Low?

I often have clients that are upset at the offer the insuranceadjustor provides for a total loss. If you believe the offer is toolow, do research on what other vehicles exactly like yours areselling for in your area and provide this research to the adjustor.Keep in mind, however, that the adjustor will typically offersomewhere between the trade-in value and the retail value.There is a little wiggle room here, but not a lot. It is also worthnoting here that in my experience, people tend to over-valuetheir own cars. When considering what amount is reasonable,you have to be detached and unemotional and look at theobjective data. In other words, the only thing that matters is howmuch it would cost you to buy the same car in the samecondition.

Mark A. Anderson

What if You are Upside Down on Your Loan?

It is very possible that you owe more on your car than the car isworth. For example, suppose you bought a brand new car sixmonths ago for $25,000 and financed the purchase through alender. We all know that when you drive a new car off the lot, itdepreciates immediately. Suppose then that you still owe $23,000when the accident occurs, but the actual value of the car is only$18,000. By law, all the insurance company is obligated to pay youis the market value of the car—or, in this case, only $18,000. Thisis called being “upside down” on your car loan, which is a verycommon problem.

Sometimes the lender will require you to carry what is called GAPinsurance, which covers the difference in the value of the car andthe loan balance. If you have this type of insurance, you would justget to walk away, owing nothing to the lender. Also, some lendersinclude GAP coverage in their contracts or offer it as an additionaloption for you to purchase. I suggest you look at the paperwork yousigned when you bought your car. You should leave no stoneunturned looking for GAP insurance coverage if you are in thissituation.

However, I have seen far toomany situationswhere there is noGAPinsurance coverage and my client is left owing thousands of dollarson their car loan, even after the insurance company pays the totalloss value. Unfortunately, without GAP coverage, there is nothingthat can be done in that situation. It is a problem that just has to bedealt with.


Tips & Tricks if You are Upside Down on Your Loan

Paying ona loan for a vehicle thatwas destroyed in a carwreck thatwasn’t even your fault is a frustrating situation, but there are a fewthings you can try in order to solve the problem. First, you can callthe lenderor the companywhereyoupurchased the vehicle andaskthem to write off the remaining balance.

This may sound like a lost cause, but trust me, if you owemoney youdo not have, what is the harm in asking? It may be that the companywould rather take the loss on the loan than try to pursue you formoney you do not have.

If they will not write off the loan, you can then try to negotiate asettlement of the remainingbalanceof the loan. Theymaybewillingto take less than what is owed to settle the loan, rather than take achance that the balance will never be paid.

Be aware, however, that if you financed the vehicle through theplace where you bought the car, a slick salesman will probably tryto entice you into purchasing another vehicle from the samecompany in order to tack on the remaining loan balance to a newcar loan. For example, if you are upside down by $2,000 on theloan, they may try to sell you a car that is worth $4,000 and offerto wrap the other loan into the new loan. This means you now owe$6,000 for a car worth probably less than $4,000. If you get inanother accident or if you decide to sell the car, you are now in thesame predicament you were before—upside down in another loan.

I advisemy clients against purchasing a vehicle from the sameplaceif the dealership provided the financing, as this could lead to evenmore problems down the road. If you do decide to go this route,make sure you try to negotiate a write-off or reduction of theremaining balance of the loanbefore you negotiate buying anothervehicle from the same company.

Mark A. Anderson

Diminished Value

Diminished value can occur to your vehicle under a number ofcircumstances. Common examples include repair-relateddiminished value, where work done by the repair shop was flawed(e.g. color match problems) or claim related diminished value(where an insurance company refused to pay for all necessaryrepairs). If your car has been involved in any kindof traffic accident,however, you are likely to encounter what is called inherentdiminished value. This refers to the actual retail cash value whichyour car has lost simply as amatter of being involved in awreck andhaving sustained damages. The reason for this is that any potentialbuyer is inevitably going to consider your car of lesser value thana comparable vehicle, since they are aware that your vehicle haspreviously been involved in a collision – even if your car displaysno obvious damages.

In order to determine the amount of inherent diminished value inyour case, you can subtract the valueof your vehicle after all repairsare completed from the total value of the vehicle before the crashoccurred. Generally, if the car was worth more than $10,000before the collision and the cost of the repairs was greater than$4,000 you have a potential case for a diminished value claim.Remember, however, that the statute of limitations in Texas (thedeadlinebywhich youmustmakeaclaim) is twoyears from thedateof the accident, just as with personal injury claims.

You can still make a diminished value claim even in situations wherethe negligent at-fault driver is not insured, provided that you carryuninsured motorist coverage. A good lawyer will be able to helpyou identify any existing insurance which you can make a claimagainst.

If your car is a lease, you should consult with your lease companyto discuss the matter with them. In some cases they will pursue adiminished value case on your behalf, but in most cases it will be upto you to do so.


Wrap Up

Being involved in an automobile accident can be a devastatingexperience. ThisGuide is based onmy experience in helping clientspick up the pieces and move on with their lives after a crash.

I hope this Guide has proven to be a beneficial outline of how tosettle your property damage claim. As always, if you wereinjured in the accident, I strongly encourage you to seek theadvice of an experienced auto accident injury attorney, as thereare many pitfalls you can avoid by hiring a lawyer to representyou in your injury claim.

Mark A. Anderson

Free Book for You!

As a public service, I have written a book called 15 Mistakes

That Will Wreck Your Texas Accident Case. This book is writtenfor consumers, not for lawyers. If you have been injured in anaccident, you should read this book. Thebook contains valuableinformation that could save you tons of time, tons of frustrationand, who knows, maybe even tons of money.

You can request a FREEcopy of this book by eithercalling my law office tollfree 800-354-MARK (6275),sending us an email [email protected] or byordering it through ourwebsite, www.maafirm.com


About Mark A. Anderson

The author of this Guide and the 15 Mistakes book is BoardCertified in Personal Injury Trial Lawby the TexasBoardof LegalSpecialization. Mark only represents individuals who havebeen seriously injured as a result of someone else’s negligence.Since 1991, Mark has been fighting insurance companies onbehalf of hardworking Texans to make sure that faircompensation is received. Mark holds the highest rating of AVPreeminent by the century old recognized Martindale Hubbellrating system. He also holds a 10 out of 10 rating of Superb bythe AVVO rating system. Mark is a life member of the Multi-Million Dollar Advocates Forum in recognition of the successfulrecoveries he has achieved over the years for his clients.

Mark offers a NO FEE GUARANTEE, which means he does notget paid until and unless he wins the case for his clients. Plus, allinitial consultations are not only free, but they are scheduledwith noobligationwhatsoever. If youwant to talk toMark aboutyour accident case, just give him a call.

800-354-MARK (6275)

817-294-1900

214-327-8000

Toll Free

Fort Worth

Dallas

Anderson Law Firm1310 W. El Paso StreetFort Worth, TX 76102

www.maafirm.com

Published byThe Anderson Law Firm

www.maafirm.com

Texans are dependent on their vehicles in order to get to work, pickup the kids from school, meet up with friends, shop for groceries anddo just about everything. So if your car, truck or motorcycle suffersproperty damage in a wreck, it's important that you know theanswers to some critical questions:

The answers to all these questions and more are answered insidethis Guide! Can you really afford not to read it?

What are my responsibilities if I wasn't the driver at fault?

How can I get the insurance company to pay for a rental car?

What does "total loss" and "diminished value" mean?

Why won't the insurance company pay me enough money?

What happens if I'm still making payments on my car?

Texas attorney Mark A. Anderson hasbeen helping victims of car wrecks andother catastrophic traffic accidentsthroughout the North Texas region since1991.

Mark is Board Certified in PersonalInjury Trial Law by the Texas Board ofLegal Specialization.

Mark is a firm believer that not everycrash victim needs the services of alawyer, which is why he offers freeconsultations to injury victims so theycan have an honest and fair appraisalof their personal situations to beinformed of their legal rights andoptions.

In addition to authoring Texas PropertyDamage Guide: Dealing with the Insurance Company After an Accident,Mark has two other published books:

15 Mistakes That Will Wreck Your Texas Accident Case: The EssentialGuide to Personal Injury Claims in Texas

Roadmap To Winning Your Texas Motorcycle Accident Case

Request your complimentary copy by calling 1-800-354-6275.

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