Do I need a lawyer? Property damage claims

One of the most common questions I get in my practice is the most basic-- do I even need a lawyer? If you've been in an auto accident, the answer is not always yes. When the accident report is clear that the other driver is at fault and there are no aggravating factors affecting the claim (i.e. the other driver was drunk), you can sometimes resolve a property damage claim without a lawyer. Here are some tips to help you deal with these claims:

1. Is the car repairable? This is the critical question to determining what you are entitled to recover. If the vehicle is repairable, you are entitled to recover the cost of repair of the vehicle. If the at fault driver's insurance company has assumed responsibility for the collision, they will usually pay the repair shop directly. You are also entitled to recover for "loss of use" of the vehicle. Often times, the other driver's insurance company will provide you with a rental car while your car is being repaired. If the other insurance company is dragging its feet, the threat of "loss of use" damages can get them moving. You are entitled to recover "loss of use" damages even if you don't (or can't afford to) rent a replacement vehicle. By telling the insurance company you'll demand "loss of use" damages for every day they fail to get the car fixed, you can often times get them to speed up the adjustment of the claim.

Another element of damage for a repairable vehicle is the "diminished value" of the vehicle. The theory behind this element of damage is that when you resell a vehicle that was in a wreck, you will sell it for less than a vehicle that has never been in a wreck. You can often find out what the loss in resale value of your vehicle will be by picking up the phone and calling your local dealership. If they don't help, there are companies that will provide appraisals of your vehicle that calculate the diminshed resale value.

2. Is the car "totalled"? A car is "totalled" by comparing the cost of repair to the pre-accident value of the car. For example, if your car prior to the wreck is worth $10,000.00, but the cost to repair your car is $15,000.00, then your car is "totalled." Texas law is clear on when a car is "totalled." Tex. Transporation Code Section 501.0911. For cars over five years old, the car is "totalled" if the cost of repair is equal to or greater than 75% of the value of the car. For cars under five years old, the car is "totalled' if the repair costs are 95% or more of the value of the vehicle.

If your car is totalled, you are entitled to recover the actual cash value of the car before the wreck. How do you calculate actual cash value? Go to kbb.com (Kelley Blue Book) and the Edmunds.com website to calculate the value. The insurance company will offer you a low ball number based on some proprietary software they have (CCC). Stick to your guns and demand fair value.

Except when repair costs are really cheap, insurance companies will often opt to total your vehicle. Why? Because Texas law says that when a car is "totalled," you cannot recover for the "loss of use" of the vehicle. That means that the other driver's insurance company can drag its feet, delay paying the claim, without the penalty of loss of use damages. The insurance company will then use the fact that they can delay payment with impunity to get you to accept less than the fair value of your car to settle the claim. After all, you need the money to replace your car. And the insurance company can sit on your money without penalty. In my estimation, this is one of the most unfair areas of insurance law.

3. If you have collision coverage, file with your carrier. If you run into the delay tactics of the at fault driver's insurance company, file with your own auto carrier. Under Texas law, your auto carrier has obligations to treat you fairly and resolve your claim promptly. The other driver's insurer does not