subrogation

by Guest » Tue Nov 24, 2009 08:11 pm

I had an accident in Jan of this year. The insurance companies agreed that fault would be allocated 80/20 with the other driver being the 80%. My damages amounted to some $26,000 before the loss of use, diminished value, out of pocket expenses, etc. My insurance company sent an adjuster who agreed to certain repairs to my truck but totaled my trailer. When I went to pick up my truck almost a month later I found out that the adjuster had unauthorized some repairs that he agreed to upfront. That is also when I also found out my trailer was being totaled. My insurance company has refused to explain. They took until the last of May to offer me a dime and refused the supplemental claim on my truck entirely. They did so even though I had documentation from the repair shops that they had found additional damage that they had not been authorized to repair. The other insurance company offered a policy limit pay out but the policy limit is only $25k. My company sent me a check for my trailer but when I told them I had received a pay out offer they stopped payment on it. They then agreed for me to accept the policy limit offer then denied giving me permission to accept it. I sent them the email where they had given the permission and was ignored. Another month went by and they again authorized me to accept the policy limit. They claim however that I will not be able to recover my claim under my UIM/PD because the policy limit almost covers the amount of my property damages minus the other expenses. As a small trucking company this has been devastating to my business. I have been out of work for over 8 months now, have lost almost $2k a week for all that time besides the out of pocket expenses and the lost freight charges I suffered due to not being able to complete my deliveries. The accident happened in Florida, my policy was issued in TN. Needless to say without there being BI to myself lawyers don't want to touch this case. They repeatedly have told me there is not enough money involved to justify their 1/3. My question is what to do now? I paid to get my truck fixed myself but I simply don't have the money to replace my totaled trailer! Any help or suggestions would be appreciated. BTW the policy limit payment has still not arrived. The company has sent me a release which I executed and returned to them. The adjuster then claimed his boss wanted a different release signed. I now have 3 different releases. Yet I signed and sent them the first one they sent me before these others came up. Can they do that?

Thanks,

Total Comments: 5

Posted: Tue Nov 24, 2009 09:59 pm Post Subject:

So many things I don't understand about this....

Normally you'd file your claim under your own collision coverage. As such, you cannot accept payment from the other carrier as your own carrier assumes your right of recovery for this amount. So why would your carrier allow you to collect the $25k from the other carrier and why would you do this if your carrier paid your PD loss? Granted, your own collision coverage would not address things like loss wages but your carrier is still entitles to their share of that $25k.

I can't speak for the repairs that your carrier is not allowing as nothing is mentioned about what they were. If your carrier won't tell you why they were not allowed, speak to a supervisor and move your way up the command ladder. If no one will answer this questions, file a complaint with the Florida Dept Of Financial Services and they will get you your answer pronto (feel free to mention to your carrier that you will file this complaint when you call them).

This is how your claim should work... your carrier should pay for the damage to your truck and trailer under your collision coverage. If you have UIMPD (Underinsured Motorist Property Damage) then they should address your loss wages under this coverage if the total amount of your loss is over the other person's limit. There should not be an "almost" enough coverage or anything like that... it's either more then $25k or it's not.

As a condition of your UIMBI coverage you cannot accept any money from the other parties carrier. This is because accepting it should require a release to be signed and this jeopardize your carriers right of recovery under your collision coverage and they have a right to pursue anything paid out under UIMPD if they so choose.

You may want to file a complaint with he FL DoFS so they can make sure everything was done correctly.

Posted: Tue Nov 24, 2009 10:01 pm Post Subject:

before people start diving in to this, I'd just like to ask - who is your insurer?

Posted: Wed Nov 25, 2009 06:20 pm Post Subject: subrogation

heidrek not that I see the pertinence but my carrier was Nova Casualty.

Tcope My carrier has not paid a cent towards my damages. They stop paid the trailer settlement check the day I deposited it. My company has fired the original adjuster and the new adjuster agreed that I could and should get paid under my collision and then go after the other driver for the other damages. She then reversed her statement and claimed they had to obtain legal advice first. In the mean time I am still waiting on a cent from either of the insurance companies. My company's first adjuster refused the supplemental claim on the basis of the appraiser's first assessment and refusal to go back and examine the supplemental damage. I spoke to the original adjusters supervisor but he simply referred me back to the adjuster. I can't file a complaint with the FL DoFS because my policy was written and delivered in TN. TN Dept of Commerce and Insurance says they are a surplus lines carrier and therefore not under their jurisdiction. That is incorrect as only my cargo insurance (Lloyds) was surplus line coverage. Nova is authorized to do business in TN. When I pointed this out they then told me that MGA's were also not regulated in TN. My position is simple the "made whole doctrine" applies in TN and my carrier has no right of subrogation until I have been made whole. That would include not only property damage per say but loss of earnings, out of pocket expenses, loss of use, and diminished value wouldn't it? BTW my carrier has already given me permission to settle with the tortfeasor's carrier. I would assume that waives their right of subrogation especially since they took longer than the 30 days they had to do so. That applies both as a condition of my policy and under TN UM/UIM statutes. Regardless if they are entitled to subrogate they have to pay me first don't they? I mean specifically I had over $50k in damages as of June 1st and every dime that has been paid for anything has come from my own pocket. My UMBI doesn't come into play unless there was bodily injury does it? Am I just being naive in thinking that I should be able to recover my collision under my own coverage and then sue the tortfeasor for the additional damages? Given that an asset check turned up no additional assets for the tortfeasor to pay from I would be stupid to file suit and obtain an uncollectible judgement, be on the hook for 33% if it settles before court and 40% if it has to go to court. Attorneys are not willing to take a case with so little money, to them at least, involved. I think part of the problem stems from the diversity of the case. Accident in FL with a FL resident and FL policy, TN company and TN resident with a TN policy. Then there is the issue of AIG sending me a release which I signed, had notarized, and returned to them and then they come up with yet another release, and now a third release. They could go on this way forever. I just want what is due me. I bought what I thought was good insurance not the cheapest. Heck I would have gotten better service from Progressive it seems. Due to FMCSA regulations I am required by Federal Law to maintain my truck in nearly perfect condition. The original appraiser and my insurance company are overlooking these facts and trying to treat this as a simple auto accident. I wish it was that easy! My truck was only 3 years old with 300k miles on it still under factory warranty and had never been in as much as a "fender bender", my trailer was less than a year old. I am not allowed under federal guidelines or my insurance policies to abandon my freight yet no one even wants to pay me for the time it took them to get an appraisor to the location (4 days). Then there is the fact that the freight had to be reassigned to another carrier. Which of course cost me over $1000 to get the deliveries completed. As you can see I am at ataloss. :(

Posted: Wed Nov 25, 2009 08:06 pm Post Subject:

I can't file a complaint with the FL DoFS because my policy was written and delivered in TN.

Sure you can... your carrier is adjusting a claim that occurred in Florida. They are bound by FL laws and as such, the FL DoFS governs how they handle a claim in their state. It has nothing to do with the TN policy... it's about the _claim_. Florida requires an adjuster to be licensed in the state. Is the adjuster handling your claim licensed in FL? If not, the FL DoFS needs to know this. If your carrier does not have a FL licensed adjuster then they need to hire an independent adjuster to address the loss for them.

My position is simple the "made whole doctrine" applies in TN and my carrier has no right of subrogation until I have been made whole.

No idea where this is going but FL law applies as this is where the loss occurred. Your policy may or may not address all of your loss. Your auto policy is certainly not going to address loss wages. As such, your carrier is under no obligation to address any portion of your loss that your policy does not provide coverage for.

BTW my carrier has already given me permission to settle with the tortfeasor's carrier.

This does not make sense. 1) Your carrier is surrogated to your right of recovery for the amount they pay on your loss. This means they they assume your right of recovery. You give up that right to them (again, only for what they pay for) and 2) the other carrier should require a release of all claims to be signed before they issue _any_ payment. Problem with this is #1.

I would assume that waives their right of subrogation especially since they took longer than the 30 days they had to do so. That applies both as a condition of my policy and under TN UM/UIM statutes.

Wow... UT does not have UIMPD but we do have UIMBI and the UIMBI carrier is only given 5 days to address recovery. TN's 30 days is much better. Your out of pocket expenses are going to exceed the $25k liability limits of the other parties carrier? You mention in your initial post that your carrier was saying at one point that they were not going to pay your UIMPD claim as your loss did not exceed the other person's limit. There is obvious some confusing with this issue.

Then there is the issue of AIG sending me a release which I signed, had notarized, and returned to them and then they come up with yet another release, and now a third release.

If the release states upon signing they they agree to pay you $xxxx.xx then they have 30 days to pay the amount they agreed to... period. If they made a mistake on the release then this is their problem. _They_ sent the release and it's valid once you sign it. Game over. If they included an extra zero or forgot to put someone's name on the release, too bad. Feel free to call them out on this and file a complaint with the FL DoFS if you'd like. You will win on any day of the week.

Then there is the fact that the freight had to be reassigned to another carrier. Which of course cost me over $1000 to get the deliveries completed. As you can see I am at ataloss

You need to look into an Inland Marine policy once this is all over.

I still recommend that you contact the FL DoFS and file a complaint. Mention that you don't think any of your adjusters are licensed in FL. Let them know that you are not being paid for all of the damages to your truck. Report AIG while you are at it. This should light a fire under both carriers butts.

Was this a qualified heavy equipment appraiser that inspected your truck? If not, this is a BIG part of the problem! A normal appraiser won't have a clue about the damages to a large commercial truck.

Posted: Thu Nov 26, 2009 06:27 pm Post Subject: subrogation

Tcope this is quite interesting information. I am not sure if my company's adjuster is FL licensed or not. Although since they are located in NY I almost bet they aren't. I will find out though. Thanks for that tidbit.

No idea where this is going but FL law applies as this is where the loss occurred.

The made whole doctrine has a slightly different application under FL law then it does in TN. My company's position is that FL law has no bearing. Actually they have said that TN law has no bearing either. Only the terms of the policy itself. I have already pointed out to them that they are very much incorrect. Perhaps this is why their last correspondence said they had asked a TN attorney for advice. From what you are postulating they should be asking a FL lawyer.

My carrier has not paid a cent on my loss. Unless you are counting the trailer settlement check they sent but then stopped payment on. I don't think you quite understand the application of the "made whole doctrine".
Here is a link perhaps it will be helpful. In TN they have no right of subrogation no matter what the policy calls for until I have been made whole for all damages incurred. Well I can't post a link it seems but if you goggle made whole doctrine you will see a link to mwl-law that explains it for all 50 states, state by state.

Your out of pocket expenses are going to exceed the $25k liability limits of the other parties carrier? You mention in your initial post that your carrier was saying at one point that they were not going to pay your UIMPD claim as your loss did not exceed the other person's limit. There is obvious some confusing with this issue.

Actually my PD exceeded the $25k. Although it is within a few thousand dollars. I have a $1000 deductible on both my trailer and tractor. So my company's position is that the actual PD when the deductibles are subtracted is very close to the policy limits. My out of pocket expenses were slightly more than $1500, but then diminished value, loss of earnings, lost freight charges, etc significantly raises the claim. Especially given the length of time involved. Of course as you mentioned most of this is not recoverable under my own policy. Although I was told when I bought my policies that these things were covered either under my BOP, BAP or my cargo policy. Needless to say my agent and I have had a round over this. I knew diminished value wouldn't be covered under any of these but given the third party liability issue it should be covered under the tortfeasor's liability. FL OIR actually issued a bulletin saying this that I have forwarded to both companies. Even in TN a third party is liable for diminished value. In effect my company is taking the position that the $25k policy limit pay out covers the PD and any other expenses are secondary and not covered under my own policies. My position is that my company should cover the PD either under collision or UIM/PD and the tortfeasor's policy covers the other damages. Does that clear it up somewhat?

I took your advice on this part and filed a complaint with FL DoFS yesterday. They actually told me that the other insurance only had 20 days to pay me and since they hadn't they now have to pay me 12% interest since the date of the release as well. Thanks. I just hope it gets some results. I also asked them about my own company's handling of the claim they pretty much told me that TN law governs it. I didn't mention about the Nova adjuster but I will call them back and see if there is anything they can do about that as well.

You need to look into an Inland Marine policy once this is all over.

I thought my Lloyd's cargo policy was pretty much the same thing. Is it not? I have $150k cargo coverage since I haul autos. Mostly very expensive autos. I actually filed a claim under it as well, for the lost freight charges. They denied payment since none of my cargo was actually damaged. I have since replaced all my insurance and went with Northland. Not that I had much choice given the fact that the underwriter instructed both my casualty carrier and my cargo carrier to non-renew my policies. Lloyd's actually told me to find another underwriter and they would write me another policy. Nova sent me notice that I was being non-renewed due to "losses". Which I found ironic given they have never paid out a cent. When I questioned them on the issue they refused any other explanation. And yes I asked these questions in writing.

Was this a qualified heavy equipment appraiser that inspected your truck? If not, this is a BIG part of the problem! A normal appraiser won't have a clue about the damages to a large commercial truck.

I think you have a valid point. I raised that issue with my carrier as well back in Feb. I have yet to receive an answer. I did some research and found out that the company they hired has such appraisers. But the only qualifications I could find on the individual appraiser is that he has some experience in construction machinery. He won't talk to me at all especially via email. Neither will the company he works for. I have been very careful to follow up any phone conversations with emails verifying the conversations. I have also done the majority of my talking to the adjusters via email. I don't think either company is very happy with that. Every time I get a different answer or a new line of BS I forward them the previous response and ask for clarification. I still find it hard to believe that this has been ongoing this long. Heck my insurance was paid in full through Sept of this year and I had no benefit of it since Jan. That almost seems like something they should also have to pay for to me. At least they should have taken my trailer off the policy and refunded that premium since they totaled it in Jan![/url]

Total Comments: 5

Add your comment