Say you’re driving down the road in your much-loved older car that you know — you just know — is gonna last you for many, many more years. And say you’re smiling to yourself about how the car has only gotten better with age because it’s been your good buddy through many an adventure and your faithful companion through many tens of thousands of miles, just the two of you twogether, so to
speak spell, when all of a sudden WHAM! some idiot staring down at a mobile phone while driving too fast perfectly T-bones you, rendering your dear friend . . . er . . . car . . . forevermore incapable of doing that thing which all cars must do to be deserving of their title, which is to say: drive.
So you get out of your car and, one quick glimpse later, head hanging low, you know — you just know — that your good buddy is dead, gone, done, finished, expired, no longer with us and not merely resting, or, as they say in this context and no other, totaled, because fixing it will cost more than the car, once fixed, would be worth. It’s a total loss.
So you’re just fine, but your car is totaled. What’ch’ya gonna do?
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Our legal system recognizes two primary types of obligations: voluntary and involuntary.
Voluntary obligations are those you choose to take on willingly (duh, right?). If you choose to do a deal with Pat Smith and then fink out on one of your promises to Pat Smith, then Pat Smith has some rights against you, and the law will help Pat Smith enforce those rights.
Involuntary legal obligations are those you owe to someone or to the world at large regardless of whether you’d like to take them on or not. For instance, parents are obligated to support their children, and all of us are obligated to not kill one another (though this obligation has taken some hits of late).
And, bringing this back to the topic at hand, all of us are obligated to not be idiots when we drive.
Surely we can all agree that millions of people violate this obligation every day, just as we can also all agree that, mostly, nothing comes of it (though surely each of us also believes that we are not among those millions of idiot drivers, and just as surely we cannot all be correct!).
But when idiotic driving causes damage, the law says that the idiot drivers doing the idiotic driving are financially responsible for putting everything back to the way it was immediately before their idiot driving caused the damage in the first place, or, as the law turns this particular phrase, that all the idiot drivers must make all the other parties directly hurt by their idiotic driving “whole.”
Sadly, my experience is that all those other parties usually end up with a decent sized “hole” in their lives, rather than being made “whole.”
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Your automobile insurance policy talks about two kinds of damage that idiot drivers cause: bodily injury and property damage.
I won’t talk much about bodily injury here. It’s a huge topic, and it’s one you can read a lot about online because there are lawyers in every town hoping to attract people who’ve been very badly hurt in car accidents, and so write about it a lot these lawyers do do.
Instead I’ll just quickly note that the sorts of lawyers who help people go after idiot drivers and all other manner of injurious folks are called “personal injury” or “P.I.” lawyers (yes, in this context the abbreviation has nothing to do with Magnum or with private investigators) and also note that, though insurance companies love to deny its very existence, let alone its validity, one rule of thumb says that the amount of money it takes to make a person whole for bodily injury is three times the medical expense occasioned by the injury, plus out-of-pocket costs. By this three-times-medicals rule of thumb, the injured person gets reimbursed for expenses, and the three times medicals go one-third to pay for the medical costs, one-third to pay for the lawyer’s services and one-third to compensate the injured person for the insult of the injury itself (a/k/a “pain and suffering”).
I’ll also note that, unless your bodily injury shows up on an x-ray, you have an uphill climb in front of you, as “soft tissue” injuries are something that insurance companies associate with dirty bloody malingerers out to game the system by exaggerating the extent of their injuries and/or by fabricating their injuries entirely out of whole cloth. So whiplash does not a great bodily injury claim make, and you had better hope that, if you ever suffer a bodily injury at the hands of an idiot driver, that it’s by way of broken bones and blood and such and not by way of soft tissue subtleties (I say this only half-kiddingly).
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With a quick look at bodily injury behind us, for the rest of this piece let’s assume that the idiot driver left your body unharmed, but really did a number on your car. What happens in terms of you being made whole?
I’m afraid my message here is pretty pessimistic. In my experience, being made whole on a car-based property damage claim is virtually impossible — especially on a totaled car, and even more so when the pre-accident car was not all that valuable. And to top it all off, finding a lawyer who will handle a property damage claim without there being a big personal injury claim attached to it is also, in my experience, virtually impossible; P.I. lawyers simply don’t act as P.D. lawyers (P.D. = property damage), except, e.g., when the damaged property is an entire building which years ago was imbued with asbestos long after the asbestos manufacturers had scientific proof that imbuing asbestos into every nook and cranny of a building would kill people and would therefore eventually need to be cleaned up, or when the damaged property was corrupted by a LUST (Leaking Underground Storage Tank) and now needs to be cleaned up.
So when it comes to big dirty property needing to be cleaned up at a cost of hundreds of thousands and often millions of dollars, with deep-pocketed building or land owners ready to pay lawyer fees, especially when the lawyers might recover their fees from the other dirty-making party, then, yes, you’ll see lawyers working property damage claims, and lots of ’em. But when it comes to a nice car needing to be fixed up to the tune of some thousands or a few tens of thousands of dollars and there’s no way for lawyers to make money from lending a hand, well, then, there’ll be no lawyers anywhere to be seen.
Throughout any efforts you wish to pursue towards the goal of being made whole on the damage to your car, then, it’ll just be you, going it alone, the sound of one hand clapping.
We’re all capable of enforcing our legal rights, aren’t we, and of being our own lawyers, right? And we all hear very distinctly that sound of the sole clapper, yes?
* * *
The good news here is that, if your car isn’t totaled, then the InsCo will pay to have the car fixed (further below I’ll talk about which InsCo pays — yours or theirs). Dents will get pulled out. Broken parts will get replaced. A replacement car will get rented for you for when you car is in the shop. Etc.
But there’s bad news here all the same. After you car is fixed, will you still view your car — your dear buddy — the same way? Won’t you always look askance at the chunks of the car that were damaged and then fixed? Won’t you always look at the new paint in the bright noon-time sun to see whether it really does match? And won’t you always wonder if the parts they used to fix the car were as good as those they had to take out? Worse still, won’t you always wonder, with every mile your drive, whether that little twitch or shimmy or stutter you might’ve just felt was there before the accident? Etc.
After all, there’s a reason that people want to look up a car’s history when buying a used car, and nothing is scarier or more value-reducing then seeing that the car had a major overhaul occasioned by some poor soul’s involuntary interaction with an idiot driver.
You are extremely unlikely to see anything to compensate you for any of these concerns. Nor will you get anything for the pure hassle you had to go through immediately following the accident up through the moment the steering wheel of your newly-fixed car is back in your sweet little hands and its accelerator and brake pedals subject to the touch of the little balls of your sweet little feets. No pain and suffering for you!
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And what if your car was totaled?
You might get lucky here, but the odds are against you. If the accident happened a block away from the dealer where a minute before you had just driven your brand new, standard-issue car off the lot, the InsCo will buy you a brand new, standard-issue car just like the one you drove off that lot that fateful day (back in the late ’60s, an idiot driver — no mobile phone involved! — rear-ended the Rover 2000TC my dad had just bought earlier that day, as it sat, stalled out, along the Edens Expressway and as my father bent over and stuck his head under the hood to see what the #!@$ had gone wrong, sending him flying through the air with the greatest of ease) (ah, British cars of the ’60s!).
But the further away your situation is from that highly stylized, just-drove-a-new-car-off-the-lot-and-then-WHAM, hypothetical, the less likely you are to be made whole.
So you know how you felt about your car, your buddy, your faithful companion in the example with which I opened this piece? A lot of us feel very strongly about these machines of ours. But you know what? None of that counts to the InsCo because the law does not provide compensation for a sentimental loss — for something personal like any of those warm feelings you felt towards your car, or for the long trouble-free car ownership you envisioned ahead of you because you knew, just knew, that this car was better than other cars exactly like it.
Nope: the only thing that counts is how much you could’ve gotten from a stone cold stranger for the car right before the accident. With the brand new car, there’s not much to debate. With an older car, though, there’s a lot of room for different opinions.
One thing is for sure, though: the InsCo will have an opinion, and it’s gonna be quite a bit lower than yours. Another thing that’s for sure is that you don’t really have a lot of good options if the InsCo refuses to budge (which they will for sure do, and usually sooner rather than later) on a number which, if someone had offered you that amount of money to buy the car the day before the accident, would’ve made you snicker and guffaw and then sneer and growl in their general direction.
If you have an older car that’s been totaled by an idiot driver, then the best advice I can give you is that you cozy up to the idea that our legal system is sometimes (often?) not fair, and to the idea that you are not going to end up anywhere close to where you were the moment before the damage occurred. In other words, you will not be made whole on the loss of your car, and you need to forget about “no justice, no peace,” and instead find a way to come to some sort of peace on your own, without the justice.
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That said, down below are some helpful pointers, of the nuts ‘n bolts variety, as you butt up against the InsCo and try to get treated right.
I assume here (a) that you do not have a lawyer helping you, and (b) that the InsCo for the other driver has admitted that the other driver was 100% at fault, so that it’s just you and the other driver’s InsCo arguing over what sort of number is fair — about what sort of number makes you whole.
Here’s the list:
1. Sales tax should be included in what the InsCo pays you because when you go out to buy a car to replace your totaled-out car, you will have to pay sales tax; that’s what’s required to make you whole, but I’ve seen InsCos put up a fight on this even though they don’t have a leg to stand on other than “just because we can, and because you don’t have any real form of practical redress.” Likewise, the InsCo should also pay for all the costs of getting the replacement car registered and license-plated.
2. Appraisals can vary quite a bit — 10% and maybe even 20%. You can trust the InsCo to use the system that generates the lowest appraisal possible for as many cars as possible. In my experience, Kelly Blue Book is not something InsCos use — it’s a retail product — but it usually comes up with high appraisals. Edmunds is also a retail tool, and it comes up with low appraisals. They say that NADA is a big one for InsCos. to use.
3. Your own InsCo might be able to provide you with a lot of help and pointers. The last time I went down this road, the person whose car got totaled got a ton of help from her own car insurance through AARP, which is Hartford insurance underneath. The person at Hartford could tell my friend what she should expect and what she should never in a million years expect to get from the other InsCo (see item 5 below), etc. In that case, Hartford would have been fine with paying for the car, after which it would have gone after the other driver’s InsCo for that cost, but the offer from the other driver’s InsCo was higher than Hartford offered to pay my friend (due to different appraisal systems), so my friend went with the offer from the idiot driver’s InsCo.
4. Keeping title to your smashed up car and selling it on your own sometimes makes sense. If you have a lot of time and energy for this sort of thing, you might end up somewhat better off keeping title to your smooshed car and selling the smooshed car as-is to someone else, rather than abandoning the car to the InsCo and accepting scrap value from that InsCo. Retail value for a car that is ugly but drivable is a lot higher than scrap value, and any number that an InsCo offers you is going to be too low anyway (it’s in their nature). The same can be said for a car that has low miles and can be parted out. If you go this route, then note this well: when selling a car, make sure you do all the DMV stuff perfectly. It takes various pieces of paper and signatures to do it right. If you are a member of AAA, they will do it for you as a drop-by desk service. Don’t sluff off this part.
5. You can make the InsCo laugh in your face by asking to be compensated for the time and hassle involved in finding a replacement vehicle. It can be a big time-consuming, no-fun ordeal finding a replacement car when the car you love has been involuntarily converted into junk, especially if you had an older car which wasn’t worth much in the marketplace but which was worth a ton to you because you knew it would last your for a long time (old Honda anyone)? But I am pretty sure no one in America since the beginning of time ever got paid search cost damages for replacing a car. Like I said, don’t expect to be made whole. All the time taken away from your normal life as a result of the idiot driver is a bill that you, and only you, will have to foot.
6. If you were in or near the car when the accident happened, things change. We’re assuming here that you were not hurt in the accident, but what if you had to be ambulanced to a hospital and had to be checked out and only then got a clean bill of health? Well, that’s a horse of a different color. The InsCo will pick up the cost of that medical attention, and will even throw in some cash on top that’s just for you. This happened to the friend mentioned above. The InsCo speedily paid for the ambulance and hospital etc., to the tune of about $1,500 (yup, medical costs in this country are kwaaazy), and my friend received about $1k for pain and suffering. She asked for, again if memory serves, $5k, which is about three times medicals and about one-tenth of what I would guess you would’ve had to pay her — $50k — to get her to volunteer to be in a car that got spun around and to then spend half a day in the ER and to then spend a couple of months dealing with not having a car and being jerked around by an especially mean-spirited, trivializing InsCo and to then have to spend a whole lot of time finding a replacement car during a very most inopportune couple’a weeks of the Winter of 2012/13, which happened to be the worst two weeks during the worst winter in more than two decades in the Chicagoland area. The InsCo laughed at the idea of even $2.5k, which is the response the person at Hartford (the friend’s own InsCo) told us to expect from the other driver’s InsCo.
7. Don’t accept the first offer. No askee no gettee, right? So ask for more than they offer, and consider asking for a whole lot more. Trust me, the InsCo will start low. It’s in their nature. So do document higher appraisals, and do counter much higher. Time and energy permitting, consider squeaky wheeling it.
8. Or do accept the first offer. Alternatively, just take the first offer, skulk away, and move on to bigger and better things. Life is short. Cars are important in a sick kind of way in many of our lives; you are, believe it or not, not your car. And if you’re like most people, then arguing numbers with an InsCo about the value of your now-gone car will be unpleasant enough and unproductive enough (e.g. the InsCo might only add a smidgen to that first number it mentions) to make your efforts perhaps not worthwhile, even if that does mean getting ripped off by some scoundrel jerk inside of some scoundrel InsCo. All things being equal, then, fighting the good fight here might take some hours off the end of your life, and maybe more than a few, so maybe you should just fold your cards at the very start and devote your energies to more positive things, eh mon? There can be considerable value in quick closure.
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So here is the bottom line: the faster you get used to the idea that our legal-slash-insurance system for compensating victims of idiot drivers will never — not ever — make you whole for this bad-luck thing that was involuntarily visited upon you, the better off you’ll be.
Yes, I am saying something along the lines of “oh, just get over it” and, yes, I know that this is a terrible thing to say to anyone, in part because it pisses off the person you say it to, and in part because no one gets over anything until they’ve gone through whatever process it is that they must go through to get to the other side. As a result, words from others seldom speed the process along, and might even hamper it!
I nonetheless say them because I think that, when you do get to the other side — the forgiveness side, if you will, or at least the it’s-all-in-the-past side — you’ll have wished that you’d gotten there faster, and you’ll appreciate that maybe, just maybe, it helped you to hear these words before you were ready to do those words.
So, please, do get on with it, and please do do whatever it takes to make your post-idiot-driver-run-in self as whole as possible as soon as possible. Why, pretty soon you’ll be easin’ on down the road with a different car, and this whole sorry affair will be over, and maybe you’ll even find yourself building up a whole new buddy-buddy faithful-companion relationship with an entirely different piece of machinery.
The generalist’s proviso: all of the above is based on my experience in California and Illinois over the years. State laws vary on this stuff, and they also change over time, so please learn the gists from the above, but please also be sure to filter and accurate-ize all those gists through the current state of the law in your particular state.