Q: If I rent a car should I purchase the additional insurance the car rental agency offers me?
Most people knowledgable in this area will immediately answer "no" to this question. We can say with certainty that the insurance company will not reimburse you for any insurance you purchase from the car rental agency.
But you might wish to purchase it anyway.
If you do not have collision and comprehensive coverage on your personal auto insurance policy and you have an accident while using the rental car then you will be liable for some or all of the damage to the rental car. Therefore you might wish to purchase insurance from the car rental company (if you do not have collision and comprehensive coverage on your personal auto insurance policy).
Even if you do have collision and comprehensive coverage on your personal auto insurance policy there could be some problems: Most collision and comprehensive insurance policies provide coverage so long as rental car not being driven for business. If you are using the rental vehicle for business purposes you should consider purchasing additional coverage from the car rental company
Your auto policy may only provide coverage up to the value of your own car. If the value of the rental car exceeds the value of your own car you should check with you personal insurance company to see if this could be a problem
The rental company may have damages from loss of the use of the rental car while it is being repaired or replaced. Loss of use coverage is ordinarily not included in the renter’s personal policy. It usually covered under the Collision damage waiver provisions.
Therefore if you want to purchase "peace of mind" you might want to purchase the insurance offered by the car rental agency. But keep in mind that you will not be reimbursed for this insurance.
Q: My vehicle was heavily damaged in the accident. Will the insurance company pay to have it repaired? What if I prefer to have it replaced?
A: When an insurance company pays for your vehicle damage they either pay to have it repaired or they pay you for the value of your vehicle. The insurance company pays for the repairs if it would cost less to repair than the vehicle was worth immediately before the accident. However they pay you for the value of your vehicle if it would cost more to repair than the vehicle was worth before the accident. If the insurance company pays you for the value of your vehicle its refered to as "totalling" the vehicle.
Often times the repairs turn out to be more than originally estimated amount for repairs. Therefore if the initial estimate for repairs is close to the value of the vehicle then the insurance company usually will agree to total the vehicle.
Q: If my vehicle is "totaled" how is its value decided?
A: The insurance companies use an appraisal service. These appraisal services check to see how much similar vehicles are being sold for. Your vehicle is considered to be worth about what the similiar vehicles are being sold for.
Sometimes the appriasal service comes up with a value that seems too low. We then use our own apprasal service and come up with our own appraisal. Also we go online to AutoTrader.com and find similar vehicles. Often this shows that the insurance company is not offering enough.
Another important technique for raising the value of a vehicle is to present records showing that the vehicle was well maintained or has special features such as custom rims.
Q: I loved my car. I've owned it for 25 years. Now its destroyed. Don't my special feelings for my car count for anything?
A: No, unfortunately sentimental value is not considered. The courts and therefore the insurance companies go by fair market value.
Q: My car was totaled. I still owe a lot of money on it. Is that going to be a problem?
A: It might be a problem. The insurance company only has to pay you the fair market value of your vehicle if it was totaled. If you owe the bank more than the fair market value then, after the insurance company pays you, you will still owe the bank money.
We see this heartbeaking situation from time to time. Our client buys the new car of his dreams for $30,000.00 and only makes a downpayment of $1,000.00. As soon as the client drives the car off the property of the dealer the value goes down to say $25,000.00 because its now a used car. Then a week later he gets in an accident and the car is totaled. The insurance company only pays $25,000.00 because that's all the car was worth. But the client still owes the bank $29,000.00. The client is in the hole for $4,000.00! This is called being "upside down" on the loan.
It is possible to insure against this risk. When you purchase a vehicle and finance the transaction you can purchase "gap insurance". If you bought gap insurance then the gap insurer pays the $4,000.00 "gap" between the fair market value and the amount of the loan. Unfortunately most people do not buy gap insurance. You might consider buying it now if you're in this situation.
Here is a link to a video on the subject of the need for gap insurance:
http://www.youtube.com/watch?v=79GdIQvyFc4
If the client's vehicle is totaled, the client is upside down on the loan and he does not have gap insurance I do everything in my power to pursuade the insurance company that the fair market value of the vehicle before the accident was at least equal to the balance on the loan. We are often able to pursuade the insurance company to up the value so that our clients do not wind up owing any money. Sometimes we call the lender and pursuade them to make a new car loan to the client for another car and have the amount of the defficiency included in the replacement car loan.
Q: The insurance company paid to have my vehicle repaired and the shop did an ok job. But I don't think my car is worth what it would be if had never been in an accident. Is this fair?
A: No its not. Under these circumstances the wrongdoer and his insurance company are liable to you for depreciation. The law clearly is on your side. Nevertheless the insurance companies resist paying for depreciation. I think they are afraid that if they start paying these claims for depreciation then everybody will be making these claims. They are afraid that anytime the insurance company pays $500.00 to pay for a dent repair the car owner will ask for another $100.00 for depreciation. But, as I said previously, the law is on your side. If given adequate proof of depreciation they will usually pay. By proof I mean a letter or report from an expert that states the amount of depreciation that took place. Sometimes I use a letter from a used car dealer and that is sufficient. Other times I have had to hire an appraiser who writes a report. I should mention that some insurance companies won't "officially" pay for depreciation because (as discussed above) they don't want to "open the floodgates". These insurance adjusters might be wiling to increase the payment for loss of use or pain to compensate my client for the depreciation. I have often used this technique.
Q: I've seen web sites entitled: San Diego Auto Accidents Attorney Car Accident Lawyer or Personal Injury Attorneys California. What do these terms mean?
An "Auto Accident Attorney", a "Personal Injury Attoney", a "Car Accident Lawyer", "Car Accident Attorney". These terms all mean the same thing. They refer to an attorney that will assist you with settlement and/or trial of your claim for injuries arising out of an incident in which someone was at fault other than the victim.
Q: Is it important to have an attorney that specializes in the particular kind of injury that I sustained or will any personal injury attorney do?
A: You will see attorneys claim that they specialize in a certain kind of personal injury case such as pedestrian injuries; cross walk cases, auto and truck crashes, bus accidents, motorcycle collisions, motorcycle accidents, bicycle accidents, bicycle crashes, burn injuries, premises liability, slip and fall cases, trip nd fall cases; dog bites and animal attacks; medical malpractice; dental malpractice, nursing home liability. The important thing is that you get a qualified attorney. It doesn't matter how the injury occured. You want a good attorney who cares about your case and has the knowledge and experience to do a good job for you.
Q: The insurance company is already offering me some money. Should I just settle the case myself?
An insurance company is a business. The people that work at an insurance company are rewarded if they take in as much money as possible and pay out as little as possible. They won't pay unless they have a reason to pay and then they will pay as little as possible. Our system is set up so that the only incentive an insurance company has to pay is the threat of a lawsuit. Why should an insurance company pay you a fair amount on your case if you do not have an attorney and lack the apparent ability to take the caes to court? The answer is that they won't. You need an attorney to make a credible threat of a lawsuit. That way you can get a fair offer.
Q: DOESN'T THE INSURANCE COMPANY HAVE THE DUTY TO TREAT ME FAIRLY?
Generally speaking, another person's insurance company does not have to treat you fairly. You can not sue another person's insurance company for not treating you fairly. It used to be diffferent in California. It used to be that if someone's insurance company acted in "bad faith" then you could sue that insurance company. This provided a stong incentive for insurance companies to treat people fairly. Then along came the case of Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) [46 Cal.3d 287]. That case held that a victim can not sue another person's insurance company for "bad faith". You can still sue your own insurance company if they commit acts of bad faith. You just can not sue another person's insurance company.
Q: How the insurance company decide how much to offer me on my injury claim?
A: You might think that an insurance company would attempt to determine what a fair amount to pay would be and offer you that amount. But "fairness" doesn’t really enter into the insurance company’s decision. The insurance company tries to predict how much it would have to pay if the case did not settle. Then they choose between paying you in order to avoid what happens if the case does not settle.
For example, the insurance adjuster might believe that if the case does not settle then you will take the case to trial and obtain a favorable verdict. In that case the insurance company will try to estimate how much the verdict would be. They generally will offer close to that amount.
On the other hand the insurance adjuster might believe that if the case does not settle then you will take the case to trial and get a very small verdict. In that situation the insurance adjuster will offer very little, if anything.
Or the insurance adjuster might think that if the case does not settle you will do nothing. (If you do not have an attorney this is what the insurance adjuster might believe.) In this situation the adjuster will probably offer you nothing.
You might be wondering how the insurance adjuster is able to predict how much you will get at trial. Insurance companies have had years of experience and they have had thousands of cases on which to base their predictions.
In fact there is a computer program that they use to determine the value of a case based on the data an insurance company has in its data banks. The name of this program is "Colossus®". This is the main tool the adjusters use when evaluating the smaller cases.
Here is a link to an L.A. Times article on Colossus:
http://www.latimes.com/news/local/wheel/la-fi-lazarus22aug22,1,4614192.column?ctrack=1&cset=true
Whether you like Colossus or not it is used by most insurance companies and a claimant must deal with it. I have been to seminars and read many articles on the subject. I have also experienced how certain factors seem to influence the adjusters’ analyses. For example, one might think that if a claimant is making a claim for a back injury it would decrease the value of his case if he had hurt his back before the accident in questions. But Colossus views a prior injury to the same part of the body as a factor which increases the value of a case.
An attorney’s knowledge of how Colossus works can give you a big advantage when your claim is being negotiated. Also if you have an attorney with a good reputation the insurance company will believe that if they do not settle for a decent about your attorney will take the case to trial and obtain a large verdict.
Q: I found out that the person that caused this accident does not have any liabililty insurance. He is uninsured. People are calling him an "uninsured motorist". What do I need to do?
A: If you were struck by an uninsured motorist then you will have to make a claim under your own insurance. You may be fine. But first I must ask you a very important question: Was this a "hit and run" accident? If you were involved in a hit and run accident then you must report this accident to the police as soon as possible. Calfornia Insurance Code Section 11580.2 provides that you must report the accident within 24 hours. I have had insurance companies try to deny claims because my client failed to do this. However there are cases that hold that an insurance company can not deny your claim simply because you failed to report the accident to the police unless the insurance company was prejudiced or harmed.
Q: Will I still be able to collect my damages if I was involved in an accident with an uninsured motorist?
A: Lets break your claim down in to its parts: 1) Your claim for injury to your body 2) Your claim for injury to your vehicle 3) Your car rental claim 4) Your claim for loss of earnings.
Claims for injuries to your body caused by an uninsured motorist - You need to look at your policy or talk to your insurance company. You need to check to see if if you have "uninsured motorist coverage". You either bought the coverage or you did not. If you bought the coverage then you should be fine on this part of your claim. Your own insurance company will pay for your claims for injury to your body to the same extent as the other person's insurance would have paid. In fact, you might even receive more since (as discussed above) one's own insurance company must treat its own policy holders fairly and in good faith.
Claims for loss of earnings or loss of wages - This is treated like injury to your body. If you have uninsured motorist coverage you should be able to recover money for your loss of income, if you can prove it.
Claims for damage to my vehicle - Again you need to look at your policy or check with your insurance company. Do you have collison coverage? If yes then you can make the claim under that provision of your policy. But you will have to pay your deductible. If you have Uninsured Motorist Property damage coverage then your insurance company will waive the deductible (you won't have to pay it). However if you wish to make a claim under your Uninsured Motorist Property Damage coverage you must be able to identify the person that struck you. If you don't know who he is (i.e. hit & run) then you lose the deductible.
Car rental - If you are hit by an uninsured motorist then you will only be reimbursed for your car rental if you had car rental coverage on your own policy.
Q: I'm really angry that the person who hit me was uninsured. This is not right. How can he get away with this?
A: First of all (as discussed above) if you have the right kind of insurance you will be paid for all your damages by your own insurance. (As mentioned above) you might even receive more because one's own insurance must treat its own insureds fairly.
Secondly, the unsinsured motorist will probably get in trouble with the law. He will probably lose his license for a year and get a big fine.
Thirdly, after your own insurance company pays you they have the right to go after the uninsured motorist for reimbursement. This is called "subrogation". If he has any money or a job then they will sue him for reimbursement. They will garnish his wages if necessary.
Q: The insurance company for the wrondoer is saying there is a "coverage issue". They say they won't pay any money to anyone until this "coverage issue" is resolved. What does this mean?
This means that the insurance company for the wrongdoer is considering denying insurance coverage. They are tellling you that they need to do some investigation before they make a decision.
For example, the insured may have paid his premium late but is saying he mailed the check on time. Or perhaps the named insured lent the car to his son who was not listed on the insurance policy but may or may not have been living with the policy holder.
If the wrondoer's insurance company has told ou there is a coverage issue, and if you have collision coverage then you should probably use that coverage to have your vehicle repaired while you are waiting to see how the coverage issue turns out. If your vehicle repairs are completed before the coverage issue is resolved you will probably have to pay the deductible with your own money in order to get your vehicle from the body shop. Then if the insurance company for the wrongdoer does extend coverage you should be reimbursed. If coverage is denied you will not be reimbursed for your deductible (unless you have uninsured motorist property damage coverage on your own policy).
If you are renting a vehicle you will have to pay for it with your own insurance (if you have rental coverage) or with your own money (if your do not have rental coverage). If it turns out that the wrongdoer's insurance company extends coverage then you should be reimbursed for the car rental. If coverage is denied you will not be reimbursed.
It may take a while for the insurance company to make a decision as to whether or not to extend coverage to their insured.
Insurance companies are very careful about this issue. In the past insurance companies have been sucessfully sued for a lot of money for incorrectly denying coverage. If an accident victim sues an insured and an insurance company denys coverage then their insured who has been sued by the accident victim must pay for his own attorney to fight the case. If the insured loses he will be responsible for paying the damages with his own money.
If it is later found that the insurance company made a legally incorrect decision when it denied coverage then the insured can sue the insurance company for all his losses including his mental anguish. He may even be able to recover punitive damages. The damges can be huge.
For this reason the insurance company often takes a long time - sometime months- to decide whether or not to deny coverage.
Q: I didn't have liablity insurance when I got into this accident? Does this matter?
Yes it matters. Several years ago the votors passed "Proposition 213". That law adds a penalty for getting into an accident without insurance. The law provides that the victim forfeits any claim for pain and suffering if he was unisured. In other words if someone wrongly injures you you don't collect anything for your pain if you were uninsured. (There's an exception if you were hit by a drunk driver.) Also you still collect your out of pocket damages such as property damage, medical bills, etc.
Q: Should I use my medical insurance to pay my medical bills even though this accident was someone else's fault? Why should my insurance pay for my medical bills if I didn't cause the accident?
A: Yes, you usually should use your medical insurance. It works out better financially for you.
If you don't use your own medical insurance to pay your medical bills then the doctors may send you to collections, file a bad credit report on you, or even sue you. They don't care why you ran up the medical bill. They just want to be paid. Its better to get your medical bills paid by your medical insurance as soon as possible to avoid this from happening.
If you don't pay your medical bills with your health insurance then the medical bills will still be owed when we settle your case. If we have to use the settlement money to pay medical bills then there will be less left for you. For example, lets say we settle your case for $30,000.00 but you had $10,000.00 in medical bills. If my fee were $10,000 and we paid $10,000.00 then there would only be $10,000.00 left for you. If your medical bills were already paid then there would be $20,000.00 left for you. (but see important discussion about reimbursing your health insurance below).
Q: How can I receive payment for my medical bills from the wrongdoer's insurance company if they are already paid by my health insurance?
A: California follows the "Collateral Source Rule". This rule states that if the victim is fortunate enough to have a "collateral source" for payment of damges (i.e. health insurance) then the victim gets the benefit - not the wrongdoer. Or another way of putting it is that evidence of a "collateral source" is inadmissable when proving a victim's damges.
Therefore if you have health insurance the wrongdoer's insurance can not subtract the benefits you received from the amount the wrondoer's insurance owes you.
For example, lets say your damages are $50,000.00. $10,000.00 of that are medical bills and $40,000.00 is the value of your pain and suffering. The wrongdoer and his insurance company owe you $50,000.00 even if your $10,000.00 in medical bills have already been paid by your health insurance.
This makes sense when you think about it. Why should the wrongdoer and his insurance company get a benefit because you were wise enough to use your hard earned money to buy medical insurance?
Q: Will I have to reimburse my health insurance?
A: This is a "hot topic" in personal injury law right now. This is what I'm talking about: Lets say we settle your case for $50,000.00 but your health insurance has already paid your medical bills in the amount of $10,000.00. Your health insurance is now asking to be paid back the $10,000.00. Do you have to pay them or can you tell them to "take a hike"?
Allmost all health insurance policies contain something like the following language: "If health insurance pays the medical bills of an insured and if the insured collects from another then the insured must reimburse the health insurance". Can they enforce these reimbursement agreements?
Victims' lawyers (like me) and health insurance companies have been arguing about this for years.
One thing we know with certainty is that the health insurnce does not have the right to be paid back 100%. In the above example the health insurance knows they will never receive the full $10,000.00. The reason is the "common fund" rule. That rule is as follows: If an insurance company wishes to share in a fund of money (i.e. the $50,000.00) they must also share in the costs of obtaining that fund of money. What were the costs? The attorney's fees and costs of litigation. This is usually around 1/3. Therefore we know that that health insurance must reduce their claim for reimbursment by at least 1/3.
What about the rest - the remaining 2/3? This is the so called "hot area" in personal injury law I mentioned.
Here's the answer in a nutshell: If you work for the government then the health insurance can enforce its right to be reimbursed. If you do not work for the government then there is a conflict in the cases. Most cases say that the health insurance can not collect reimbursement from you. However there is one case (The McDowell case) that says they can collect reimbursment from you. You will be much better off having an attorney negotiating with your health insurance company than trying to do it on your own.
Q: The insurance company is trying to take my statement. Should I let them tape record me answering their questions?
A: No. The insurance company has 2 goals when taking your recorded statement. One of their goals is to get information about the matter. They need to know where the accident happened, whether there was a police report they should request, etc. The other goal is to get you to say something that they can use against you. If you ask them why they need a statement they will mention the 1st goal (getting information) but not the 2nd (getting ammunition they can use against you). If all they need is some information why are they turning the taperecorder on? Obviously if they are taping the conversation they want to use it against you at a later time. Don't do it. Talk to an attorney.
If you hire an attorney he may decide to present you for a recorded statement. But if he does rest assured that you will be well prepared. A good attorney knows what questions the adjuster or investigator will ask. A good attorney will rehearse the statement with you so you don't have to "think on your feet".
Q: My vehicle doesn't show a great deal of damage but I am still in a lot of pain. How will the insurance company treat me?
A: First of all it is well known by doctors that an occupant of a vehicle can be hurt even if the vehicle shows little in the way of damage. But you can be sure that the insurance company will argue that if your car wasn't dramatically damaged then you couldn't have been hurt. I suggest you take a look at the following link:
http://www.cnn.com/2007/US/02/09/insurance.hardball/index.html
The CNN story explains how if you are injured in a car crash without much vehicle damage, the chances are good that you will be in the fight of your life to get the insurance company to pay all the medical costs you incur -- even if the accident was no fault of your own.
Q: I see you have several offices listed. What geographic areas are served by Harley A. Feinstein and Associates?
A: If you enter any of the following terms into a search engine you may find my office: Encinitas Personal Injury Attorney, Encinitas Car Accident Attorney, Encinitas Injury Attorney, Encinitas Injury Lawyer, Encintas Personal Injury Lawyer, Oceanside Personal Injury Attorney, Oceanside Car Accident Attorney, Oceanside Injury Attorney, Oceanside Injury Lawyer, Oceanside Personal Injury Lawyer, Vista Personal Injury Attorney, Vista Car Accident Attorney, Vista Injury Attorney, Vista Injury Lawyer, Vista Personal Injury Lawyer, San Marcos Personal Injury Attorney, San Marcos Car Accident Attorney, San Marcos Injury Attorney, San Marcos Injury Lawyer, San Marcos Personal Injury Lawyer. My main office is in Encinitas. However I serve these other locations. I make home visits to all of these locations in appropriate cases.
