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LegalGems
LegalGems, Lawyer
Category: Consumer Protection Law
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Experience:  Research Attorney; Private Practice; Attorney Mentor; Mediator
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I had a crack in my windshield on the passenger side upper

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I had a crack in my windshield on the passenger side upper right. In Massachusetts, insurance companies are obligated to repair the windshield with no deductible applied. I called, scheduled the repair at my home, and of course gave them all the particulars of the car type which is 15 years old. I was not notified of any risks by either the insurance company or the repair company. 15 minutes into the work the repairer advised that he could not replace the windshield because pieces of the frame that it sits on were rusted. He would not put the old windshield back into the car nor would he leave the old windshield with me. The insurance company, after discussion with me, agreed to have the car towed and have the rust fixed at their expense. They would not provide me a rental as I did not have that option in my policy. I received a call from the insurance company today and they said the repair estimate ($5500) potentially exceeds the cost of the car and they are having their appraiser look at the car. I am now at least out of a car till next Tuesday. They also said they may total the car as the book value is ~ 3500. I just had major repairs done to the car (a new transmission in January 2013). I could potentially have had the windshield crack repaired for $70 dollars as the crack was less than 8" in length and not the result of anything hitting it. At minimum, I could have continued with the crack for a longer period of time but at least have had it repaired at a more opportune time. Of course I do not want them to total the car as it is in great shape otherwise and of greater value to me than the book value. How would you suggest I proceed on negotiating a rental car and the value of the car if they decide to total it?

LegalGems :

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.

LegalGems :

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?

LegalGems :

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.

Customer:

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.

LegalGems :

Failing to return parts (and failing to advise you of this right) is a violation of 940 CMR 5.05 (4).

LegalGems :

I'm looking into a few things.

LegalGems :

Here are various local mediation (free) services offered by consumer affairs: http://www.mass.gov/ocabr/consumer/autos/auto-repair/local-consumer-groups.html

LegalGems :

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

LegalGems :

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.

LegalGems :

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.

LegalGems :

Were you able to review the above?

LegalGems :

Please post any questions you may have on the above and I will respond as soon as I see the reply. Thank you.

Customer:

Thank you this is very helpful

LegalGems :

You are very welcome. I hope this works out well and with little headache. Take care.

LegalGems and other Consumer Protection Law Specialists are ready to help you
Customer: replied 3 years ago.

Hi,


 


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?

That is rather frustrating. If you do settle with the insurance company, they will likely have you sign a release, meaning that you cannot later go back and sue them. However, this would not prevent you from suing the repair company - since it was actually their negligence that created this mess.

Before they total it, pictures would be helpful to show that a reasonable person would have known the extent of the rust damage and thus would have advised that removal would have resulted in the inability to repair.

If possible, a third party inspection (for documentation purposes) would also prove helpful - but obviously this repair person would need to go to the salvage lot or wherever the car is located in order to view the car- and they would charge this fee. However, this would help to further document your case so that you could bring an action later against the repair person/company for negligence, misrepresentation.
Customer: replied 3 years ago.

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?

It appears as if my last post did not go through. Sorry for that. I will retype it.

While the repair company is being hired and paid by the insurance company, they still have a duty to act with reasonable care. Furthermore, if they do damage to your property, they can be held liable for this. A reasonable repair person, upon noting that this was not a standard "replacement" (i.e. it could not be replaced due to rust) is obligated to advise the consumer and insurance company that if they remove the windshield, it would be cost prohibitive and/or impossible to replace the windshield due to rust. What governs is standard business practice for the locale - and I would assume that the average repair guy is not randomly removing windows without noting/disclosing rust issues. That would appear to be negligent. As for having no discretion, it is incumbent upon the repair person to notice issues such as this and update the insurance company and consumer, so they can determine the best course of action based on the new information. I would suggest, since this is getting to be every one pointing fingers at the other person and no one accepting responsibility - to hire an attorney to write a summation of events, address it to both the repair person and the insurance company, and ask how they suggest to rectify it. Everyone has a duty to mitigate - to lessen the damage. Well, removing a windshield, versus repairing a crack, knowing it can't be replaced due to rust issues, thereby resulting in the salvaging of the car, would be a failure to mitigate one would think!
LegalGems and other Consumer Protection Law Specialists are ready to help you
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Thanks!
Legalgems