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CalAttorney2
CalAttorney2, Attorney
Category: Business Law
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Experience:  I am a businesses law attorney, with experience advising and representing owners and investors.
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We are a hay company in TN and we sent 4-5 semis in 2 weeks

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We are a hay company in TN and we sent 4-5 semis in 2 weeks ago to load at a farm in TX. The farm said their automatic gate got damaged and they think they know which truck did it but they didn't see it actually happen though they say they are very sure of which truck it was. The driver doesn't think she did the damage and there was no damage to her truck. Her trucking company processed the claim through AIG and I don't think AIG is going to approve the claim since the truck had no physical damage and they also said it's the drivers word against the farms word - he said, she said situation. The one estimate they had on the gate so far was $3,500. I had money on account deposited with the farm in TX for the hay and now they won't release the last approx. $3,500 of hay I have there until this insurance thing is resolved. Anyway I would like to ask if the truck's insurance company does not pay due to the fact they didn't think their driver did it or theirs not enough evidence to prove which truck company did it is then is my companay responsible for the damage because we arranged the trucks to go in there? Or is the farm owner more responsible if they can't prove the driver or which trucking company did the damage or if someone besides the different trucking companies damaged the gate? If they withhold the money can I make a claim in small claims court based on the fact they couldn't prove which truck did it? Can you give me the most likely answer based on this information provided and what a court or small claims court would most likely decide based on previous case law? Also I have not paid the trucking company the $1,600 owed them for hauling the load. Can I hold that back if we think their driver damaged the gate? Thank you.

Attorney William B. :

Dear Customer, thank you for choosing Just Answer. While I cannot give you a legal opinion regarding the outcome of this matter, I can tell you what claims would be made and make the observation that absent information and evidence to support their claim, the farm will have a difficult time proving causation regarding the damage to the gate (this makes their holding of your money a difficult position).

Attorney William B. :

With regard to the farm holding your money (the last loads of hay), unless there is something in your contract that states they are permitted to hold the deposit against damage done by third party contractors or vendors (which is possible) they cannot do so.

Attorney William B. :

Even if there is such a clause in the contract, they can only withhold money if they can prove causation. Trucks, tractors, and other farm equipment moving in and out of a gated portion of a farm are common, trying to pin such a claim on a single truck "because they think it was that one" is not going to be sufficient in most cases, particularly when there is no damage to that truck - this is likely why the insurance claim was denied.

Attorney William B. :

To get your money (hay) back you will need to file in small claims court in Texas if they are unwilling to cooperate.

Attorney William B. :

Regarding withholding money from the driver/trucking company. If there is no evidence that the driver was responsible for the damage, there is no basis to withhold money from the driver (just as the farm has no grounds to withhold payment from you). The fact that the farm has improperly withheld your money does not mean you can do so from this third party, although you may certainly plead them into your lawsuit as a defendant as well so that in the event the Court finds that it was the truck driver, you can get a judgment in the same case against the truck driver for the lost money).

Attorney William B. :

The claim against the insurance agency is correct by the trucking company as claims are based on any issue raised or brought against the entity even before litigation or regardless of merit. Hopefully this will help to resolve the issue without the need for going to small claims in a different state.

Customer:

Thank you. Good informaton. Should I send the farm a registered letter asking for what proof they have and physical evidence on the supposed truck that did the damage? Or what should I state in the letter? Maybe also note to them my potential damages as a result of the delay in the release of funds and that time is of the essence.

Customer:

If I send that letter it would be to support my evidence for small claims court in the long run.

Attorney William B. :

I cannot give you specific legal advice or instruction, but sending a "pre-litigation demand letter" such as that is usually not a bad idea, many attorneys do so. Some also attach a copy of the proposed complaint to the letter and tell the other party that they will file the complaint if they do not receive an answer within a set number of days or weeks.

Customer:

OK thanks much. Robert

Attorney William B. :

You are welcome, is there anything else I can assist you with today?

Customer:

No thanks and take care

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