PRACTICAL GUIDE TO PROPERTY DAMAGE CLAIMS FOLLOWING A MOTOR VEHICLE ACCIDENT IN FLORIDA
One of the important issues auto accident victims must deal with is their property damage claim. There are certainly more important issues to be concerned about than a damaged vehicle—most importantly getting proper healthcare and addressing loss of income to pay basic living expenses—but from a practical perspective having a working motor vehicle available becomes a high priority for most accident victims. It goes without saying that you have to be able to get to and from doctor’s appointments and get to and from work to address the more important issues of health and income. So addressing property damage claims is of great practical importance for the victim of a motor vehicle crash.
The following general guidelines are intended to help motor vehicle accident victims understand both their rights in regard to recovering compensation for their property damage and the property damage claims process. This is not meant to be an exhaustive explanation applicable to all circumstances, but is a practical guide that will help accident victims understand their basic rights and the claims process in most situations.
What are your legal rights?
If your vehicle or other personal property is damaged in a motor vehicle crash that was caused by someone else, you have two separate and distinct sets of rights and remedies to consider. The first is your claim against the adverse driver (and the owner of the motor vehicle they were driving in most circumstances in Florida). The second set of rights--if you purchased the appropriate insurance coverage--is under your own insurance policy.
Your rights against the adverse driver and owner:
Your right to recover from an at-fault driver and owner is based upon Florida tort and negligence law, not an insurance contract. In cases where your motor vehicle can be fixed—or in other words is not a total loss—the at-fault driver and owner are responsible to pay the following damages:
- the reasonable cost of repairing your vehicle;
- loss of use of the vehicle while it is being repaired (often addressed through a rental, as addressed below);
- towing , storage, and other incidental charges you incur as a result of your loss of the vehicle that would not have incurred if not for the motor vehicle crash; and
- In some cases, damage for the diminished value of your vehicle since it is now a “wrecked vehicle” even though it is repaired.
In cases where your vehicle cannot be fixed, or when it doesn’t make economic sense to fix it because the cost of fixing it is too high when compared to the fair market value of the vehicle, the adverse owner and driver are responsible to pay you the following:
- the fair market value of the vehicle;
- the cost of taxes on the fair market value and lost registration fees (commonly referred to as “tax, tag, and title”);
- reasonable towing and storage charges; and
- loss of use for a reasonable period of time so that you can find a replacement vehicle.
These are basic rights, well-established in Florida law. Don’t let an insurance adjuster tell you otherwise. If you are getting the run around, seek the advice of an attorney who specializes in representing accident victims.
What are your rights against your own insurance company?
Unlike your claim against the adverse driver and owner, your rights against your own insurance company are determined primarily by the terms of your insurance contract. If you did not purchase the right coverage—which is most commonly referred to as “collision” coverage—you may have no rights whatsoever to recover from your own insurer for your property damage. If you did purchase collision coverage, or a similar coverage, your rights are defined by the terms of the policy. As a practical matter, most policies which include collision coverage pay for either for the following:
- the cost to repair your vehicle (in cases where your vehicle is not a total loss); or
- the fair market value of the vehicle, including tax and registration fees (if your vehicle is considered a total loss).
There are a couple of major differences in connection with a claim under your own policy as opposed to a claim against the at-fault driver and owner. Your rights to recover under your own policy, if you purchased collision coverage, are broader in some respects, but narrower in others. They are broader due to the fact that you can recover from your own insurer regardless of whether you were at fault or the other driver was at fault. (Don’t worry about your insurer having to pay when the other party was at fault—this is explained in more detail below in regard to the claims process). Your rights against your own insurer are narrower in that in most circumstances (1) you do not get to recover for the diminished value of a wrecked vehicle which is fixed and (2) you do not necessarily get loss of use damages. In regard to the latter, you can, however, receive a rental if you purchased rental coverage (and in most cases rental coverage is a separate coverage with a separate premium). Your claim against your own insurer would be subject to your deductible as well.
If the other person was at fault, why should your insurer have to pay?
If the other party is at fault and you choose to go through your own insurance company to resolve your property damage claim, your own company will gain a “right of subrogation” and stand in your shoes for purposes of recovering the money it had to pay out. So don’t worry about your insurer paying—it will get its money back and likely has a subrogation department dedicated to doing so. It should also recover your deductible on your behalf and pay you that money once it makes a recovery.
How does the process work?
Whether you go through your own insurer or the adverse party’s insurer, the process is very similar. An appraiser or field adjuster will inspect your car to prepare an estimate of the damage to make an initial determination regarding the amount of the damage and whether or not the vehicle is a total loss. If not, the insurer will typically pay a reputable body shop directly to perform the repairs. Sometimes the repairs cost more money than originally anticipated and, if so, the insurer should pay for the additional charges. It is not always possible to determine the total amount of damage based upon the initial damage appraisal. Your concern should be a get a fully repaired vehicle that is in the same condition it was in just before the crash. If you have rental coverage, or if you are working through the adverse party’s insurer for the property damage, a rental is usually provided during the time period in which you are without your vehicle during the repair process.
If your vehicle is declared a total loss, the insurer will actually purchase the vehicle from you and pay you the fair market value of the vehicle (the value before the crash), plus sales tax and your title and registration fees. Determining fair market value can be difficult, but consumers can rely upon resources such as KellyBlueBook.com, Edmunds.com, similar vehicles for sale in your area, and other information. There is no bright line standard regarding how to determine the fair market value of the vehicle and this is often a source of frustration for accident victims. Your attorney can help you determine the fair market value of your vehicle and present evidence to the insurer that it is worth more than offered. Keep in mind that the make, model, and model year are not the only important factors. The condition of the vehicle, mileage, accessories, and other factors can influence the fair market value. In most cases, however, a reasonable range of the fair market value is ascertainable through online resources mentioned above.
The guidelines presented above are simply that, guidelines. Property damage claims can often be complex—and in some cases it is not wise to treat your property damage separately from your personal injury claim. Most persona l injury attorneys will assist you with your property damage claim (often at no cost if a lawsuit is not required) if they are handling your personal injury claim as well.
