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rody_44
Premium Member
join:2004-02-20
Quakertown, PA

2 edits

rody_44 to raythompsontn

Premium Member

to raythompsontn

Re: wife in accident

On the phone we told our insurance we made a appointment to get her sore back looked at. No answer from State farm yet although after the call to progressive they called back within 5 minutes and said they will waive the deductible but they cant do anything about the rental charges. We shall see made the appointment to see a lawyer tomorrow he will be calling with info. No intention of sueing for injury but have every intention of getting what is owed. Tryed to stop repair on the vehicle was informed thats not possible. Probably wouldnt have been smart to do that anyway. But it was the heat of the moment decision. Some shit about prorating the rental charges we pay up front and get a fraction back later. Doesnt sound like a plan to me. Lets see if the tune changes when she starts running up medical bills. Her back has been sore since the accident she keeps saying its fine its just stiff. Been telling her all week to get it looked at and advil isnt the answer.
raythompsontn
join:2001-01-11
Oliver Springs, TN

raythompsontn

Member

Have the Dr. perform an MRI. Keep receipts for all the charges. Go to the Dr. once every two weeks if necessary. Do not settle the medical charges for 11 months. You have a year to settle the medical. Do not let the insurance company push you for an early settlement.

If the insurance calls your wife and asks how she feels do not have her say "OK". That can be considered an admission of no problems and the insurance company will record the conversation.

Do not let the insurance company talk you into making a statement that they record. Simply tell them you will make no statement to them without your representative being present. The less you tell the insurance company the better your chances of a settlement.

But be careful. Generally, unless you have suffered loss of limb or other bodily function in an accident insurance companies will only provide you about twice what the medical bills were. And if the insurance policy of the person at fault exhausts all the funds for medical you may not get what the Dr. charged. The insurance company is under no obligation to inform you of the policy limits.

Contacting a lawyer will not get you much and may in fact reduce your settlement as beyond the initial consultation which is free, the lawyer will get a third of any settlement. Except in grave injury the settlement amounts are pretty much set and there is no need to give any to an attorney for doing little to nothing.

Such a low minimum liability amount is sad, truly sad. Cause an accident and smash a couple of cars and you could be looking at $100K without too much difficulty.

Also remember that if the other persons policy does not have enough to cover medical, your insurance company will not make up the difference. You are considered on your own. The only way at that point to get anything is to sue the individual and that is generally a wasted effort. Get a judgment and they don't pay. You then have to go back to court to get another judgment. They still don't pay. Then you have to post a bond to have the marshal go after them. They could also claim bankruptcy and then you get nothing. If they had that low insurance coverage I doubt they have much of anything else.

I have been through most of this for an accident where the other driver was at fault. I was rear ended by a driver doing 40 MPH while I was stopped. I got hit hard enough to break the drivers seat. Airbags did not deploy as they are not supposed to deploy in a rear end collision. I fought the insurance company for a year and came away with little.
tcope
Premium Member
join:2003-05-07
Sandy, UT

tcope to rody_44

Premium Member

to rody_44
said by rody_44:

We shall see made the appointment to see a lawyer tomorrow he will be calling with info. No intention of sueing for injury but have every intention of getting what is owed. Tryed to stop repair on the vehicle was informed thats not possible. Probably wouldnt have been smart to do that anyway. But it was the heat of the moment decision. Some shit about prorating the rental charges we pay up front and get a fraction back later. Doesnt sound like a plan to me. Lets see if the tune changes when she starts running up medical bills. Her back has been sore since the accident she keeps saying its fine its just stiff. Been telling her all week to get it looked at and advil isnt the answer.

No "tune" will change... it is what it is. The other owner/driver is liable and responsible to pay your loss. The state allows the other person to drive as long as they have $5000 in property damage coverage. The other carrier was paid to provide this $5,000 in coverage. They are not simply going to give their insured more coverage then they were paid for. No company just hands out millions of dollars each year for the heck of it. If their insured did not pay for more then $5000 worth of coverage, the carriers hands are tied. If you want to file an injury claim... they is your choice.

Let me ask you a question.... would your wife have sought treatment and would you have filed an injury claim if the other person had more then $5,000 in coverage?

An attorney will take 33% off the top of your injury settlement. Your carrier will pay for the medical bills and the other carrier will take an offset for this amount. Example... lets say your wife has $3000 in medical expenses and the other carrier values the claim at $6,000. Let's just say that is the correct amount for the sake of this post. The other carrier then takes the $3,000 offset for what your carrier paid on the medical bills which leaves $3000. Your attorney takes $990 of this, leaving around $2,000 for you. So you'd collect $2,000 in a $5,000 claim. $5,000 worth of expenses were racked up in order to collect $2,000. Something to think about.

You might also note that it does not take an attorney to collect on an injury claim. You'd only need to gather and submit the medical bills to the other person's carrier and make a demand then negotiate. But you need to review the information in my prior post as well.
rody_44
Premium Member
join:2004-02-20
Quakertown, PA

1 edit

rody_44

Premium Member

Thank you very much for that info. You hit everything pretty well exact. She wont be going to the doctors and i wont be getting a lawyer. I will be looking at the made whole clause you speak of. I wasnt aware of that. I think there out on that tho is going to be because i dont have rental on our policy. In any case after i calmed down the plan now is just to get the car fixed and be done with it. I guess the best thing would be to take the guy to small claims court for the rental. You know really dont think i want to put someone else in any bad positions. So im just going eat the rental and be done with it. Got a call from the body shop they said its going to paint already but projected complete time is 2nd of next month.
tcope
Premium Member
join:2003-05-07
Sandy, UT

1 edit

tcope

Premium Member

said by rody_44:

Thank you very much for that info. You hit everything pretty well exact. She wont be going to the doctors and i wont be getting a lawyer. I will be looking at the made whole clause you speak of. I wasnt aware of that. I think there out on that tho is going to be because i dont have rental on our policy. In any case after i calmed down the plan now is just to get the car fixed and be done with it. I guess the best thing would be to take the guy to small claims court for the rental. You know really dont think i want to put someone else in any bad positions. So im just going eat the rental and be done with it. Got a call from the body shop they said its going to paint already but projected complete time is 2nd of next month.

The thought behind "made whole" and the reason many states have these laws is because otherwise a person would be penalized for having too much insurance available. Granted, this thought process really applies to "double dipping" (where you can get paid twice for things such as medical bills) but it's true of made whole as well. _You_ suffered a loss and should be put back to where you were prior to your loss. So you should be able to collect every penny from the other person. That includes 100% of your property damage and 100% of your rental (loss of use). Now... _you_ also pay your carrier money to protect you against a loss to your vehicle. That agreement allows them to take over your right of recovery to pay themselves back. A situation that this creates is that because _you_ are paying to protect yourself... you are screwing yourself over. If you were not paying your carrier to provide you protection, you would have recovered _all_ of your loss from the other person. You have a right of recovery for what your carrier did not pay and they have a right of recovery for what they paid. Who is first in line or should be be split. The state recognizes that the carrier is collecting a premium and in return has agreed to accept this exact risk. Also, _you_ are the one paying them for that risk. So they should be second in line when it comes to the right to collect. It's only fair.

I said all of that partially as you seem to be willing to allow your carrier to collect what they paid and you feel it's okay to be out of your rental expense. Heck no! You paid your carrier premiums month after month for the coverage they provided... you paid for their assumption of this kind of risk. They have done the math. They know how many times they won't collect 100% from an at fault party and they have worked this all into the premium they charge you.

Made whole is _only_ about the amounts _not_ paid by your carrier. Nothing else. So it _specifically_ applies only to your deductible and your rental. I seem to recall they they might "waive" your deductible? Um, yeah... they are probably "waiving" it because they _HAVE TO_! I'm betting the adjuster just thinks that is what they do to be nice. Um, no... they waive it because PA is a made whole state. I'm guessing the adjuster does not know _why_ they waive it so he/she does not know that they need to waive all of your out of pocket expenses.

Next week either call the adjuster or that person's supervisor (you may want to speak to the supervisor but it's whatever you feel comfortable doing). Let them know, as you understand it, PA is a "made whole" state... that this is why they are "waiving" your deductible and you understand it should also apply to your other out of pocket expenses (rental (loss of use) and if you want, you could argue diminished value). When talking to people holding my money I always like to "lead" them to a conclusion and not back them into a corner.

Sorry that I was a little long winded.

Edit: I deal with a lot of states but that also means I don't know all the details about one. I'm thinking PA is a made whole state by what I found on the Internet. But I'm pretty sure that information is correct.

Cho Baka
MVM
join:2000-11-23
there

Cho Baka

MVM

You are the kind of insurance agent I would like to have.
rody_44
Premium Member
join:2004-02-20
Quakertown, PA

rody_44 to tcope

Premium Member

to tcope
I dont know if i have tort limited tort or what. Not even sure what that gets me.
rody_44

rody_44 to tcope

Premium Member

to tcope
You bring up a interesting detail as pa is a made whole state yet insurance companies use pro rata rules.

From the April 2010 issue of Claims Magazine • Subscribe!
Understanding Made-Whole Doctrines

By William Sylianteng

April 2, 2010 • Reprints
Share on twitter Share on facebook Share on email Share on print More Sharing Services 68

Accordingly, the insured made-whole doctrine, at its heart, is concerned with the priority of the distribution of settlement funds. It dictates that the insured's claim is given first priority over the insurers when faced with a tortfeasor who does not have enough funds to cover both.

When faced with an insured made-whole situation, note that in most instances the subrogation claim has the lesser priority, and you may not be able to assert the claim until both the insurance payment has been made to the insured and the insured is determined to have been made whole.

The Pro-Rata Approach

Only two states have sanctioned the pro-rata approach to handling third-party distributions in which there is an insured with underinsured losses. Those two states are New Hampshire and New Mexico. However, neither state authorizes the pro-rata approach for all situations.

In fact, New Hampshire only sanctions it in situations where there is a reduced recovery "settlement." In other words, it is allowed in situations where the insured settles for less than his total claim with the third-party tortfeasor and thus forecloses even the possibility of a subrogation recovery by the insurer.

Meanwhile, New Mexico does not rely on direct pro-rata (in proportion with the respective losses of the insurer and insured). Rather, it sanctions an "equitable apportionment" approach, which dictates that the court sitting in equity makes the decision on how to best, in an equitable fashion, split up the proceeds of a third-party recovery. Unfortunately for the insurer, in situations where there is an underinsured innocent insured, equity will likely favor making the insured "whole" prior to providing the insurer with a subrogation recovery.

Insurer Made-Whole Rule

Only a few states follow the insurer made-whole rule, and only one opinion has truly stated it in its purest form. In Maryland, a retired judge who was specially assigned to the Stancil v. Erie Insuarnce Company case, set forth the pure essence of an insurer made-whole rule by stating that the insurer should have the right to recover prior to its insured because an insurer should not be precluded from recovering its proper subrogation claim because of the failure of an insured to adequately insure his property.

Unfortunately, although the underlying principle enunciated in the Stancil opinion has merit, the rule in its purest form is not applied very often, if at all, beyond the Stancil opinion. As you can imagine, without commenting on whether it is fair or not, more often than not a judge sitting in equity will have a hard time pronouncing that equity favors the insurer over the underinsured "innocent" as opposed to negligent or comparatively negligent insured.

Accordingly, if a court were to apply the principles of the rule, it would likely be done as it is in New York, as an "insurer-equal" scenario. In an "insurer-equal" state, the insurer's rights are divisible and independent from its insured. As stated by a New York Court in Winkelmann v. Excelsior Insurance Company, the insurer's subrogation claim arises, "upon payment to insured without regard to whether insured was made whole."
billydunwood
join:2008-04-23
united state

billydunwood to rody_44

Member

to rody_44
said by rody_44:

Thank you very much for that info. You hit everything pretty well exact. She wont be going to the doctors and i wont be getting a lawyer. I will be looking at the made whole clause you speak of. I wasnt aware of that. I think there out on that tho is going to be because i dont have rental on our policy. In any case after i calmed down the plan now is just to get the car fixed and be done with it. I guess the best thing would be to take the guy to small claims court for the rental. You know really dont think i want to put someone else in any bad positions. So im just going eat the rental and be done with it. Got a call from the body shop they said its going to paint already but projected complete time is 2nd of next month.

Just make sure you ask the body shop for receipts to prove it is OEM parts and make sure you look and see the "Toyota" stamp on the parts. I like when you said you will have the dealer inspect it. I hope it turns out great