Hi! LegalGems here. My goal: To Do My Best To Assist You. Please remember, I can only provide general information,as this is a public forum.
I am sorry to hear of that. Generally, when someone performs services, they are under a duty to advise the consumer of any possible risks involved in the repair. When you signed the authorization for the repair, were there any disclosures regarding possible risks, or any other disclaiming language involved?
According to 90 CMR 5.05, A repair shop must fix any repairs it has made on your car that were not repaired in accordance with trade standards. 940 CMR 5.05 (8). It may be worth your while to have an independent repair shop dmine if this procedure was conducted within the trade standards. If it is determined that it was not, then you would be able to request that the vehicle, at minimum, be returned to the position it was in before they started tampering with it. Generally, the cause of action for both negligence and breach of contract, when successful, require that the plaintiff be restored to their original position.
I did not sign anything prior to the work. After the work I signed the work order which had no authorizations or disclaimers or risks. I noted on the work order at I was not appraised of any risks and that they would not put the old windshield back on and that they would not leave the old windshield with me.
Failing to return parts (and failing to advise you of this right) is a violation of 940 CMR 5.05 (4).
I'm looking into a few things.
Here are various local mediation (free) services offered by consumer affairs: http://www.mass.gov/ocabr/consumer/autos/auto-repair/local-consumer-groups.html
That can help you mediate with both the repair shop and the insurance company. But if you would like to mediate with the insurance company, the insurance division of the state offers mediation and ensures resolutions in compliance with the law: http://www.mass.gov/ocabr/government/oca-agencies/doi-lp/mass-div-of-insurance.html
If it is determined that the repair shop acted unreasonably, generally all damages (economic) suffered that were reasonably foreseeable would be recoverable; that would generally include a replacement car while the car was being repaired. The mediators and or the civil judge will determine whether it was unreasonable/negligent for the repair shop to fail to advise as to possible rust issues, particularly given the age of the car.
Generally, if an insurance company totals a car, the consumer is entitled to the blue book value (unless the policy specifies otherwise). However, if it is determined that there was negligence, then the proper damages would, as stated above, generally be replacement cost plus any other damages such as rental car coverage.
Were you able to review the above?
Please post any questions you may have on the above and I will respond as soon as I see the reply. Thank you.
Thank you this is very helpful
You are very welcome. I hope this works out well and with little headache. Take care.
I heard from the insurance company and they are totaling the car as the repair is ~ $1700 greater than the value of the car. They said this has never happened before. They said I should be appreciative that they are not applying the deductible. I told then that given the price to repair the rust behind the windshield that the repair person should have known about the damage. The car is not operable as they refuse to put the old windshield back in. My back is to the wall as I need either the car or the money to replace it. Is there a way to settle for the value of the car and then deal with the replacement cost of finding a new car, rental of a car while looking, and other costs later?
It is getting interesting. I just spoke with the repair company and he said that they are contracted by the insurance company not by me. He also said that the insurance company decides between repair or replace (a chemical repair of the crack could have cost as little as $70). He was told my car windshield was a replacement. Once that is issued to him there is no discretion by the repair person in the field. Translation: he does not look for rust or complications for repair...his job was to take it out and replace it. Any different thoughts?
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