by MydiCloud » Sun Jul 07, 2013 06:53 am
My insurer never gave me the required written notice in California of my "right of recourse" in my first party claim. I educated myself and notified them within the 35 days that I couldn't replace my "Total Loss" vehicle for the settlement amount paid. They have continued to ignore me. They auctioned my car within 5 days of receiving title so I wasn't able to exercise my independent appraisal clause. When I contacted insurer regarding not being able to replace my vehicle I was told that I would have to come up with money out of my pocket to purchase another car even though the car I was trying to replace mine with was substandard having 2x the mileage, wear, smaller engine, and cheaper trim package. I contacted the DOI. and they sent me a letter stating the insurer says it's a matter of opinion so there's nothing they can do. The CCC report says the allowances they show /used in the report are for illustrative purposes only. Can I sue my insurer in small claims for the $3000 they shorted me if I can prove I my valuation is higher than their settlement amount paid?
Posted: Sun Jul 07, 2013 02:56 pm Post Subject:
Max would know better then I but I don't think there is a requirement for your insurance company to explain your rights under the policy... again. The appraisal clause is written in the policy for your to read at any time. This is why it's given to you. It's a contract.
You gave your permission to your insurance company to take your vehicle. So you had the opportunity to refuse. You also had the opportunity to have your own vehicle inspected prior to giving it to your carrier.
"Within 35 days"? I don't know if any such requirement to dispute a payment within that time frame. But none the less, you are disputing the amount. What you are stating is that your vehicle is worth more then they allowed. I'd think you'd be able to show that buy just obtaining documentation based on the document condition of your vehicle.
BTW, why do you think your vehicle was worth more? If you thought this why did you not start to pursue this from the start?
The CCC report says the allowances they show /used in the report are for illustrative purposes only.
I've looked at hundreds of CCC reports and I don't think it says this about the vehicle's chosen to compare to your vehicle. What I _will_ say is that CCC reports are crap! They take the condition of your vehicle into consideration (they rate it) but then they usually also make a "base line adjustment". They claim this is to bring your vehicle inline with those that they compare it to. However, 1) they already did that by rating the condition of your vehicle and 2) they don't really know the condition of the vehicles they used in their report.Can I sue my insurer in small claims for the $3000 they shorted me if I can prove I my valuation is higher than their settlement amount paid?
Yes. Won't say you will win but you can do that. Have you supplied your information to your carrier for consideration? Review their CCC report to see if they made mistakes and bring this to their attention as well.Posted: Mon Jul 08, 2013 06:47 pm Post Subject:
I agree with tcope's last statement. You are free to sue anyone anytime. Winning a suit is a different matter. At least in Small Claims Court, you cannot be assessed for filing a frivolous action.
Small Claims cases in California are now limited to $10,000, so you have the right to sue for up to that amount. As far as the Right of Recourse notice, failure to deliver the notice with a determination of a total loss would constitute a breach of contract -- if that is discussed in your contract (probably is).
From another website:
Right of Recourse
If you cannot locate a replacement vehicle within 30 days (California is 35 days) of receiving a cash settlement, you may have some additional rights under your insurance contract.
If you cannot purchase a substantially similar vehicle for the market value determined by the company, but you have located a substantially similar vehicle that costs more, the following procedure(s) shall apply:
(a) The company shall either pay you the difference between the original settlement and the amount of the substantially similar vehicle which you have located or attempt to purchase this vehicle for you; or
(b) The company shall locate a comparable vehicle for you at the market value determined by the company at the time of settlement; or
(c) The company shall conclude the loss settlement as provided under the appraisal section of the insurance policy.
Your insurance company must give you written notice of this procedure once your vehicle has been determined a total loss.
You would have to prove failure to notify, then you would have to prove the value of your vehicle, then you would have to show the cost of an appropriate replacement of like kind and quality. And you'll have to provide the court with a copy of your auto insurance contract (or at least the appraisal section) to verify the legal responsibility of both you and your insurer.
Not impossible, but not easy either.
Posted: Mon Jul 08, 2013 08:52 pm Post Subject: I present my case... now you be the Judge
Thank you tcope for your reply.
I but I don't think there is a requirement for your insurance company to explain your rights under the policy...
Your correct that they aren't required to explain my rights, however, in a first party Total Loss Claim they are required to give claimant written notice of their Right Of Recourse.
California Code of Regulations
Title 10, Chapter 5
Subchapter 7.5
Section 2695.8.(c)
(c) In first party automobile total loss claims, every insurer shall provide notice to the insured at the time the settlement payment is sent or final settlement offer is made[i][b]that if notified by the insured within thirty-five (35) calendar days after the insured receives the claim payment or final settlement offer that he or she cannot purchase a comparable automobile for the gross settlement amount, the insurer will reopen its claim file. If subsequently notified by the insured the insurer shall reopen its claim file and utilize the following procedures:
My insurer continues to ignore me.
appraisal clause is written in the policy for your to read at any time. This is why it's given to you. It's a contract
Yes they did provide me with a copy of my policy to read and yes I did read the contract and would have exercised my appraisal clause had they not Auctioned my car within 5 days of receiving the Title. They had assured me that they needed the Title to take possession and move the vehicle to their own storage facility. I signed a release at the repair shop to be able to move it off premises to keep costs down.
The paperwork packet requesting Title etc. stated they were needed for processing the claim and can be sent before or after the claim is settled. Returning the paperwork didn't constitute an settlement agreement. I never agreed to their settlement offer.
BTW, why do you think your vehicle was worth more?
They are giving me an average payoff when my vehicle was not average and therefore can't be replace for an average payoff. I should be paid amongst the top of their comparable's not the average based on the following:
127,200.
Loss vehicle had only 36,000.
[list:7c0bdd313e]
inferior trim package. Bare bones basic trim models.
[*:7c0bdd313e] CCC made the following deductions allowances when it reports that my vehicle has everything these reported comparable vehicle's have....PLUS more.
[*:7c0bdd313e] [b]Section 2695.8(b)(2) Additional Standards Applicable to Automobile Insurance
Any adjustments from the cost of a comparable automobile must be discernible, measurable, itemized, and specified as well as appropriate in dollar amount and so documented in the claim file
CCC Market Valuation Report states:
Allowances are factors influencing the value of the loss vehicle when compared to a typical vehicle. The typical vehicle is a vehicle of the same year, male, model as the loss vehicle, including mileage, and all standard and predominant equipment.
[i]These allowances are illustrative only. The Proposed Settlement Amount is calculated entirely from the comparable vehicles with adjustments to reflect the loss vehicle configuration.
[*:7c0bdd313e] Insurer's Total Loss threshold was 70% and Repair Shop was instructed to stop
teardown and call Insurer if the estimate for repairs reached that amount to go
no further.
Repair estimate divided by 70% = Determined Valuation
This calculates to an underpayment amount of $2,665.85 which is EXACTLY the amount difference between the top paid comparable's and the average. It also is exactly in-line with the comparable replacements I have found available in my market but can't afford to purchase due to only an average settlement amount paid.
[*:7c0bdd313e]Code of Regulations
Additional Standards Applicable to Automobile Insurance
Section 2695.8 (b)(1)
[1) The insurer may elect a cash settlement that shall be based upon the actual cost of a "comparable automobile" less any deductible provided in the policy. This cash settlement amount shall include all applicable taxes and one-time fees incident to transfer of evidence of ownership of a comparable automobile. This amount shall also include the license fee and other annual fees to be computed based upon the remaining term of the loss vehicle's current registration. This procedure shall apply whether or not a replacement automobile is purchased.
[/list:o:7c0bdd313e]My Insurer included Tax only legally advising me that they are not required to pay anything else and have fulfilled all of their Legal obligations to me as required by the State Of California.
If you thought this why did you not pursue this from the start?
i did and it's been exhausting, frustrating and depressing.Now that you have the details.....what do you think?
DD
Posted: Mon Jul 08, 2013 09:18 pm Post Subject: I present my case...now you be the Judge
Thank you Max Herr for your reply.
If you would be so kind as to read my reply to tcope I would really appreciate it. It's taken me 2 days to write and learn the bb code to post.
Although my insurer failed to give me written notice of my Right of Recourse, I exercised my "Right" anyway within the 35 days.
My adjuster told me I had to come up with the money out of my pocket if I couldn't find one for the settlement amount paid.
Please let me know your thoughts.
Thank you for your time.
Posted: Tue Jul 09, 2013 04:16 am Post Subject:
Can you email me a copy of complaint response letter that CDI sent you? I don't know why they would decline to pursue a glaring market conduct violation. Use the link below to reach me.
Posted: Tue Jul 09, 2013 06:01 pm Post Subject: Copy Of Complaint Response Letter
Can you email me a copy of complaint response letter that CDI sent you?
Done
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