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Ely, Counselor at Law
Category: Consumer Protection Law
Satisfied Customers: 102522
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Due to car accident vehicle is total loss. Progressive is

Customer Question

Due to car accident vehicle is total loss. Progressive is offering a very low evaluation of the vehicle. What all can I legally claim from the insurance. The claim is being covered under progressive insured vehicle that rear ended me
JA: What state is this in? And how old is the car?
Customer: Virginia
JA: Have you talked to a lawyer yet?
Customer: No
JA: Anything else you think the lawyer should know?
Customer: No really but it appears that the valuation is for the vehicle only, I am wondering if the insurance should be liable for other costs involved in purchasing a replacement vehicle such as sales tax, dealer fees etc. Also can I claim any amount for my personal time spent on dealing with the issues caused by the accident such as time spent away from work, stress and aggravation of dealing with the whole incident.
Submitted: 1 year ago.
Category: Consumer Protection Law
Expert:  Ely replied 1 year ago.

Hello and welcome to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

I am sorry to hear about this situation. Please clarify:

1) Whose fault was the accident? Yours or the other driver's?

2) Did they have insurance?

3) Do you have comprehensive or limited liability insurance?

Customer: replied 1 year ago.

The driver who hit me from behind was at fault. Progressive is his insurance company and they are trying to settle the claim. I only have liability insurance. My vehicle has been declared a total loss.

Expert:  Ely replied 1 year ago.

Thank you. Classic - this happens all the time.

Please understand how this works. Once someone hits you and they have insurance, the insurance is liable for the judgment that you'd get against the driver if you sue them (in limited amount, but usually pretty high). Ergo, to avoid paying out huge sums from a judgment where their driver is likely responsible, the insurance company likes to settle the claim to avoid litigation. Once an agreement is reached, you sign a release and waive your rights to sue in exchange for the payout.

But, how does one reach that settlement? The insurance adjuster. The adjuster's job is to make you miserable. They will ignore you, confuse you, and ask for redundant and seemingly needless paperwork in an effort to talk you into a small settlement or have you give up all-together. And remember, statute of limitations usually only gives you a limited time to file suit, which is 5 years per Va. Code § 8.01-243(B). They know this; they hope you do not. If you miss the deadline, you can no longer file against their driver, which means they do not even have to work with you.

What they are offering should at least cover:

1) all medical bills;
2) all bills for vehicle repair;
3) missed work; and
4) pain and suffering.

Not that they have to, but because they know that you'll at least get that in Court. The last one (pain and suffering) is the wild card, and there is where they will try to avoid paying much.

An attorney usually cuts through this malarkey since the adjuster knows counsel does not put up with this and WILL file suit if needed (whereas here, they do not see you as much of a threat without an attorney since you filing or winning a suit without counsel is unlikely). Then a settlement is usually reached. The attorney should take this on a contingency basis, meaning they do not get paid unless you do. Usual set up is their take is 33% settlement, 40% win at trial, 45% at appeal; plus some office costs. Everything is negotiable.

So if you are stuck with a low offer, considering retaining counsel who will likely scare them into paying more. Even with the attorney's contingency, you are still likely to get more than you would yourself.

I hope this helps and clarifies. Please use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how experts get credit for our time. Rating my answer the bottom two faces/stars (or failing to submit the rating) does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith with a positive rating.