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South Carolina Property Arbitration for Depreciation, Loss of Use, & Actual Damages

I have always threatened to take an insurance company to arbitration over their ridiculous offers but never had a client that could afford to take the time and roll the dice on a Battle Royal. Ask and you shall receive. *(see a recent update on this article at the bottom).

Today, I partook in my first property arbitration over depreciation, or diminution of value, due to an automobile wreck and subsequent repair of their vehicle.  This was my first because, as an attorney and business venture, it is not worth the time, effort, or eventual outcome to pursue such action, especially when there are personal injuries that arise out of the accident. The personal injury claims are a much more valuable and worthwhile effort for attorneys to assist. However, I did this one pro bono, gratis, and/or “for free”. Although I did not gain financially from this venture, I was able to gain through experience.  A much more valuable weapon against evil insurance companies.

With most every car accident arises two causes of actions.

  1. Property Damage: A claim for property damage can be in the amount of actual damages (repair costs), loss of use(not having your car/having a rental), and depreciation/diminution of value (the value of your car before vs. after the accident-given that it was in a wreck); and
  2. Personal Injury:Any injury sustained as a result of the physical, mental, and/or emotional impact of the accident, or trauma.

In my case, the plaintiff had her brand new, candy apple red convertible slammed into by a dump truck.  The defendant did not dispute that they were at fault.  The defendant repaired the vehicle and provided a rental but when the plaintiff inquired about depreciation due to the stigma of the car being in an accident, the insurance company said they did not recognize such damages. WHICH IS BULLSHIT and ILLEGAL.  Insurance companies don’t make money paying it out, they make money keeping it.

The highest offer the defendant made was only a couple hundred dollars to my client, even after I became involved.  At arbitration the plaintiff was awarded almost triple the insurance company’s highest offer and it was the insurance company’s expert testimony that helped the arbitration panel make their determination.

Why would an insurance company drag this out and only offer a few hundred dollars? That would be because 80-90% of you will go away and the 10-20% that fight them are cheaper to pay off than the 80%.  It is a numbers game. The more you roll over to the insurance companies, the more money they make, and the more they laugh at you. Don’t let them laugh at you, fight back!

You don’t have to be an attorney to request an arbitration hearing or to file a claim in small claims court. Please go to this link to learn more:

http://www.doi.sc.gov/consumer/auto.htm

South Carolina allows for persons to request an arbitration through S.C. Code Ann. 38-77-730:

 

SECTION 38-77-730. Request for arbitration; no formal pleading and process; arbitration docket; filing of claim; service of summons to defendant.

(a) Any person who is a party to the disputed property damage liability claim may submit his claim for determination through arbitration. No formal pleading or process is required. The clerk of court of each county shall prepare and keep an arbitration docket and set the cases thereon for arbitration as provided by law for the settling of cases in the court of common pleas.

(b) The claim must be filed with the clerk of court in the county in which the cause of action arose or where the plaintiff or defendant resides. The claim must be filed in triplicate with the clerk of court on forms to be provided by him. The forms shall set forth the names of the parties, the date and place of the accident, and the amount of property damage claimed. The clerk shall file one copy in his office, and one copy must be served upon the defendant as provided by law for service of summons and complaints. The sheriff, or such other person, shall promptly serve the claim upon the defendant and shall receive the sum of five dollars to defray the cost of securing this service. The sheriff, or such other person, serving the process shall promptly file an affidavit of personal service with the clerk of court on forms to be provided by the clerk.

(c) There must be attached to, or made part of, the form a summons to the defendant named notifying him that he should file a response with the clerk of court within thirty days from the date of service and that failure to file a response within thirty days entitles the plaintiff to a default judgment. The form must be signed by the party filing it or his attorney, if any, and shall by order of reference show the address of the person signing it.

 

 

SECTION 38-77-740. Hearing; notice to parties; damages to be awarded; securing attendance of witnesses.

(a) The court, or the clerk acting for the court, shall assign the arbitrators to hear the matter at the courthouse, or other designated place in the county where the claim is filed, within sixty days after the date of filing, or as soon thereafter as is feasible. The clerk of court shall, on a form provided by him, advise the parties or their attorneys of record, if any, by mail as to the place, date, and time of hearing and shall advise the parties to bring all records which may pertain to the claim, including, but not limited to, the following:

(1) Two estimates of damage to the motor vehicle or its contents signed by the estimator.

(2) Signed receipts for car repairs.

(3) Bills or receipts for other property damages claimed.

The forms shall also contain notice to the parties that, if they cannot attend because of illness or otherwise, the clerk of court must be notified as soon as possible with the request that another date be set for the hearing.

(b) Property damages must be awarded as provided by law, including, but not limited to, actual damages, loss of use, depreciation, and any other property damages which are the direct and proximate result of the accident.

(c) The parties may secure the attendance of witnesses by their voluntary appearance or may secure their attendance by subpoenas prepared and issued in accordance with the laws of this State.

 

Don’t think being an attorney affords you any differences when dealing with insurance companies. I recently had to go through the same process with an insurance company as a result of a property damage claim. They forwarded me a check significantly lower than the actual repair costs, rental car invoice, and depreciation. I requested an explanation within 7 days and received none. I filed arbitration pleadings in the proper county and had an offer almost double the initial amount within 3-4 days.  Don’t play around with them. File the arbitration papers for $5.00 and then send them an original copy with a reasonable demand.

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What Can I Do About Property Damage to my Car After a Wreck?

Don’t panic. You have just been in a wreck and your vehicle was totaled or determined to be undriveable. The other driver was put at fault by the investigating officer. What do you do now?

  1. Take note of which towing service takes your vehicle. This is after you take tons of pictures to the damage on your vehicle and the other vehicles.
  2. Contact the at fault driver’s insurance information that is located on the FR-10, or green incident report, completed by the officer.
  3. Report the wreck to the at fault driver’s insurance company but do not agree to a recorded statement or further inquiry on the phone.
  4. Identify to the at fault driver’s insurance company that your vehicle was damaged and you need a rental.
  5. If the at fault driver disputes the officer’s determination of liability (that they were indeed at fault) then the at fault driver’s insurance company will dispute paying for your vehicle and giving you a rental.
  6. Order the more detailed FR-50, two page accident report, from the South Carolina Department of Motor Vehicles.  (You will have to send in $6.00 so click on the hyperlink for the address).
  7. Demand a rental car of like kind. They will say no, but ask and plead anyway.
  8. If your car is determined to be “totaled”, then you will need to determine the value of your car based upon its mileage, year, overall condition, and essentially what it would take to replace exactly what you had before the wreck.
  9. Go to comEdmonds.comNADAguides.com, or KBB.comand try and find a vehicle just like yours within a 50 mile radius of where you live to get an idea of what your vehicle is worth. Send those examples to the adjuster if you do not like the number they offer.
  10. Two (2) claimsarise out of the majority of wrecks: a property damage claim and a personal injury claim.  Make sure if you settle your property damage claim that you ONLY settle your property damage claim and not your personal injury claim. Yes, insurance companies trick people all the time by having them sign away both claims.
  11. If the at fault driver’s insurance company is taking an inordinate amount of time and you have coverage on your insurance, then file your property claim with your insurance company. Yes, the otherside was at fault but this will get the problem solved and you will be reimbursed your deductible when the at fault driver’s insurance company finally pays.
  12. If you are not provided a rental vehicle immediately after the wreckand you are without your vehicle for a period of time before you are offered a settlement on your property damage. You are entitled to “loss of use” for the time you are without your vehicle. The owner may recover the value of the automobile’s use during the time in which he was necessarily deprived of its use. Adams v. Orr, 260 S.C. 92, 98 (S.C. 1973).

My clients are most frustrated with property damage. I am most interested in your personal injury claim. That is why I provide you with this very comprehensive guideline when dealing with insurance companies over property claims.

If you have questions about your insurance policy, read my “Full Coverage” article.