Assistance Needed to recoup rental car costs and diminished value

[Nightshade869]

Hello,

This is my first time here as I have given up trying to find a local lawyer to talk to. Every single one I have attempted to contact refuses to help answer a few questions since, to date, I am not aware of any injuries from the accident (so no money in it for them I guess even though I offered to pay for 30 min of their time). So thank you in advance for any help :-).

I was rear ended while sitting at a stop sign in October 2022. The other party is 100% at fault and did not dispute liability. My car was really messed up in the rear after being hit (sedan vs truck). The trunk was totally destroyed and the back glass/rear glass roof was cracked. The rear camera was also dangling from the car. It was in no way water proof anymore and there was no way to tell if there was frame damage/if it was still safe to drive in case of another collision prior to repair. Having a newborn at the time my insurance agreed with me it was inoperable and not safe to drive. Here are some details:

• Location: California
• My vehicle: 2022 Tesla Model 3 Standard Range (had 214 miles on it when hit)
• At fault vehicle: Dodge Ram 1500
• My insurance: Costco
• Other driver insurance: Farmers

At the time, every tesla certified body shop within 100 miles of me was booked out until February and none of them could even give me an appointment for them to see the car until 3 weeks after the accident. My insurance stated they could have their adjuster do the estimate via photos and the preferred tesla body shop in my city (the one I wanted to use too by chance) would accept that and let me book a repair appointment. This meant I could get a shop appointment in the books weeks faster than if I waited and initially filed through the at fault party's insurance. I was told that after my 30 days of rental was up on my policy that I would have to pay out of pocket and then submit the receipts to farmers on the back end through subrogation.

My car was in the shop from 2/6-3/6 and I paid out of pocket for a rental car most of Dec-Mar (we didn't even rent a comparable vehicle in terms of luxury features from the Tesla, I got the best deal I could on a 5 seater mid size sedan). Farmers insurance is now refusing to pay me anything for my loss of use with the rental car beyond the 30 days they will pay back my insurance for. My out of pocket rental expense was $3329.45.

My questions are:

• Can they legally not pay for my loss of use in CA like this? Am I entitled to get this money back?
• What steps do I have to get my money back? After I appeal it with Farmers, do I file a complaint with the CA insurance commission? If Farmers still says no, do I need to sue the at fault driver in small claims court?
• If I do need to file suit, who do I file it against? The at fault driver was a teenager under his mom's insurance policy. Do I file against both of them or just the parent?

Additionally, I have also submitted a diminished value claim (dv adjuster estimate I paid for states $8700 in dv) with Farmers and they are currently processing it. I already know that I will get denied or low-balled on this one and am assuming I will have to take this one to small claims court no matter what. Main question here:

• Am I allowed to file two separate suits in small claims court (assuming that I will need to for my rental costs as written above) against the same person for these two different issues? The total from diminished value + the rental costs is over the 10k limit for small claims which is why I am asking.

I apologize for the lengthy post and I will greatly appreciate any and all help in answering these questions :-).

[adjusterjack]

Simple answer: One accident - one lawsuit. Full stop.

If you want small claims, you waive anything over the $10,000 limit. If you want more than that you sue in superior court.

You sue the driver that hit you. You can include the owner of the car under the doctrine of negligent entrustment, but that's not going to change how much money your loss is worth.

The other driver's insurance company is not your insurance company. It has a contractual obligation to its insured. The claims people are allowed to dispute the amount of payable damages and it's up to you to prove by a preponderance of the evidence that the amount of your damages is valid. They are doing nothing that the insurance department would be interested in so you'd be wasting your time with a complaint.

With regards to those damages it's not a matter of what you think you are "entitled" to it's what you can prove that the driver is legally liable for paying.

I happen to agree with Farmers about the rental costs. The driver that hit you didn't cause the delay to get into a Tesla approved shop. I'm sure that there were other shops that could have taken the car in within a couple of weeks. Yes, you're entitled to the shop of your choice, but the at-fault driver isn't liable for long delays, just because you own a Tesla, when other alternatives are available. It's called mitigation and it's a requirement of all negligence claims. If you choose not to mitigate, you cover your own expenses above what is reasonable and customary. A small claims judge might not be that rigorous, but the potential is there.

You may have better luck with your diminished value claim. As of 2017, the California Jury Instruction (CACI-3903J, 2017), reads in part as follows: "However, if you find that the [e.g., automobile] can be repaired, but after repairs it will be worth less than it was before the harm, the damages are (1) the difference between its value before the harm and its lesser value after the repairs have been made plus (2) the reasonable cost of making the repairs. The total amount awarded may not exceed the [e.g., automobile] value before the harm occurred."

If you go to court on it, you will need your DV adjuster to testify in court. If you try to submit just his report, the insurance company rep could challenge its admissibility if the adjuster is not available to be cross-examined as to his qualifications. Parties to a lawsuit are entitled to question witnesses who present evidence.

I sympathize with you. I once had a brand new truck that got hit with only 700 miles on. Heartbreaking, yes. But I am also a 35 year veteran of the insurance industry and a retired claims adjuster so I'm giving you the reality of what you are facing.

Nobody is ever "made whole" in an accident claim.

[Nightshade869]

adjusterjack

Thank you so much!! This is super, super useful and is exactly the assistance I was looking for. I really appreciate you taking the time to answer my questions. This is my first time ever being in an accident and I have no idea what I am legally owed vs life just happens lol.

One follow-up question I have is regarding the mitigation part. Tesla will only ship parts to certified body shops. It's literally not possible to have your car fixed at non certified shops because they cannot obtain the parts and there are no aftermarket parts for Tesla vehicles (the entire back half of my roof had to be replaced and you can only get that glass from Tesla for example). So in this instance, there were no other shops I could take my car to. Does that change this in anyway? They also only paid back my rental company for the 30 days of a rental, but even assuming I could get in earlier, isn't it reasonable they should at least pay for the rental for the typical time to get the car damage estimate + the repair? I'd be happy with them even paying for an additional 15-30 days, but not paying for anything seems a little crazy to me. No repair shop can get the car in same day and repair in 30 days (which is pretty much what they are paying...only the repair time for an inoperable car).

I am grateful that financially we could cash flow the rental car, just want to be fully informed as to what I should or should not pursue for reimbursement as I was not at fault.

Thanks again so much!!

[adjusterjack]

One follow-up question I have is regarding the mitigation part. Tesla will only ship parts to certified body shops. It's literally not possible to have your car fixed at non certified shops because they cannot obtain the parts and there are no aftermarket parts for Tesla vehicles (the entire back half of my roof had to be replaced and you can only get that glass from Tesla for example). So in this instance, there were no other shops I could take my car to. Does that change this in anyway?

Still not the fault of the driver that hit you. Though you can point that out to the adjuster.

They also only paid back my rental company for the 30 days of a rental, but even assuming I could get in earlier, isn't it reasonable they should at least pay for the rental for the typical time to get the car damage estimate + the repair?

Yes, the time it would reasonably and customarily take to get the car into the shop should be covered for the rental.

I'd be happy with them even paying for an additional 15-30 days, but not paying for anything seems a little crazy to me. No repair shop can get the car in same day and repair in 30 days (which is pretty much what they are paying...only the repair time for an inoperable car).

I agree. Two to four weeks could be a reasonable compromise. Ask for four, if you can't get four you might get some of it. Negotiation is also part of an insurance claim.

I suggest waiting for the decision on the DV. If they low ball you, you can offer to accept it if you get more of the rental covered.

Understand that the adjuster wants to get this settled as much as you do. The longer a claim stays open the more scrutiny he gets from his manager.

[Nightshade869]

Thank you so much again adjusterjack

[adjusterjack]

You're welcome. I'm here every day if you have any more questions.