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My son was rear ended by another car in an intersection in

Chicago while waiting to make...
My son was rear ended by another car in an intersection in Chicago while waiting to make a left turn. After calling 911 they were instructed to drive to the nearest police station to report the accident. Although a detailed accident report was not written up (my son requested one, but the officer refused and said if he needed more information he should just call later), the report that was completed listed the other driver first (as the at fault driver). Both my son and the other driver were in agreement at the police station as to what happened. After getting estimates on damages to both cars, the other driver's girlfriend (who owned the car used by the driver who hit my son) filed an insurance claim against my son saying he was at fault for the accident. Because the police report wasn't "clear enough" as to who was at fault according to their insurance company, they refused our claim and filed one against my son. Fortunately, my son went back to the scene of the accident and found an eye witness who worked at a gas station at the intersection where the accident took place. He remembered seeing the whole thing (without any prompting from my son) and witnessed the other driver running into the back of my son's car. We reported this to their insurance company (along with the fact that we planned to take their client to court if they didn't come clean). They contacted the witness, who confirmed what he saw, and then notified their client. The client "surprisingly" decided to accept 100% responsibility for the accident. The accident happened in February and we were told over two weeks ago that they would complete the claim. Since my son has an older car, we would like to be reimbursed for the damages as he may be getting another vehicle in the not so distant future. They had told us earlier that they would only pay the estimate he got (about $2K) if he turned over his car to them. Otherwise, he would have to accept their estimate of about $1,500 or get the car fixed. What are our rights and options? We are so frustrated with the lying and delays.
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Answered in 1 minute by:
5/10/2013
Richard
Richard, Attorney
Category: Legal
Satisfied Customers: 56,030
Experience: Attorney with 29 years of experience.
Verified

LegalBeacon :

Welcome! My goal is to do my very best to understand your situation and to provide a full and complete answer for you.

LegalBeacon :

Good afternoon. You have all the leverage here and are entitled to be paid for the damages to repair your son's car. If they won't pay voluntarily, file suit against the driver and his girlfriend. That will give you the leverage and collection options you need.


Once the suit is filed and a judgment awarded, you become a judgment creditor, and if the losing party doesn’t then pay the judgment, you can have the sheriff serve a summons on the losing party for a debtor examination. That forces the losing party to meet the judgment creditor in court and answer questions under oath about the losing party's assets. After that information is obtained, the judgment creditor has the power to garnish wages, attach bank accounts, have the sheriff seize other personal property, and/or place liens on any non-homestead property to satisfy the judgment.

Customer:

Do we have to accept their estimate of the damages (which is about $400-$500 less than the estimate we got) if we do not have the car repaired?

LegalBeacon :

Thanks so much for your reply. You are entitled to use the estimate from the repair shop you trust. You are not obligated to have the car repaired; the estimate is simply a measure of the amount of damages suffered and the amount to which you are entitled to be paid.

Customer:

What if the insurance company refuses to pay our estimate? They said if we don't repair the car the only way they would pay the estimate amount we got (which is close to the blue book value of the car) is to turn the car over to them.

LegalBeacon :

You are entitled to be compensated for the loss you suffered. You are not legally required to fix your car; in fact, you have the right to drive it as damaged or to trade it in for a new one. The insurance company doesn't simply get the unilateral right to determine that an insured is not covered because they are not exactly an unbiased party. If it were me, I would write the insurance company a certified, return receipt requested letter explaining this in detail and demand that they reconsider their denial of coverage within a short specified period of time or I will have no choice but to file a claim against them. I would be sure to mention I intend to file this claim as not only a breach of contract claim, but also as a failure to reasonably settle, which will entitle me not only to actual damages, but an additional amount equal to a multiple of your actual damages as punitive damages.

Customer:

I assume you are talking about the other party's insurance company? Our insurance company has been in contact with them but says they are limited as to how much they can do since we do not have collision on this car. I didn't know we could file a breach of contract claim against the other driver's insurance company since we don't actually have a contract with them.

LegalBeacon :

Oh...I thought you were talking about your own insurance company. With regard to theirs, they cannot limit your damages...they can limit what they are willing to pay and if their insured is not happy with their limit, their insured can sue them. But, whatever their insurance company doesn't cover it going to be the responsibility of the driver and his girlfriend.

Customer:

My question was if they are required to reimburse us for the full amount of the estimate ($2K) WE obtained for damages to the car if we don't get it repaired. Or... can they just pay what THEY estimated the damages to be, which is about $400-$500 less. They said if they were to pay our estimate (which also happens to be about the same as blue book value) with the understanding we would not be repairing the car, we would need to turn the car in to them. I know we are not talking about a lot of money here, but with all the frustration they have put us through, we'd like to get what we are entitled to.

LegalBeacon :

Yes, you are entitled to the full amount of your estimate. If they will not pay it, file a claim against them in small claims court to get it.

LegalBeacon :

The other side can always find someone to repair a car more cheaply, but you are not required to accept that. You are entitled to get your car repaired somewhere you trust.

Customer:

Just curious... are there any consequences to the driver and his girlfriend for filing a false claim against my son with the insurance companies?

LegalBeacon :

You could include a fraud charge as well as a defamation claim. This may give you some leverage in them agreeing to pay; but given the amount of money involved, it's really not worth taking your eye of the primary claim.

Customer:

Can our insurance file a defamation/fraud charge on our behalf? Also, still not clear on the reimbursement from their insurance if we do NOT get the car repaired. Do we get the amount of our estimate or the amount of their estimate?

LegalBeacon :

Your insurance company would have no standing since they have no loss. It is you that suffered the loss. You get the amount of your estimate...whether or not you repair your car.

Customer:

Thanks. I have always taught my kids to be honest and do the right thing. It upsets me that these people had no qualms about blaming an innocent party for an accident they caused. If my son hadn't found an eye witness, this accident may have been on his record along with an increase in costs of insurance for him. He lives in Chicago and the insurance for someone his age (24) is ridiculous as it is. I don't think its right for someone to just get away with something like this without any consequences.

LegalBeacon :

You're welcome; I totally understand your frustration...that's why I would file the small claims court case if they don't pay the full amount. At that hearing, even if you don't file a cause of action for fraud and defamation, you can weave it into your story so the judge knows exactly what kind of people he's dealing with on the other side.

Customer:

If they end up paying the full amount, are we still entitled to file a defamation/fraud suit, or is that a mute point? I would not be doing it for the money (as I assume there wouldn't be much if any, anyway), but for the principal... and to make them face the consequences of their actions.

Customer:

sorry... meant to say "moot" point.

LegalBeacon :

Yes, you do not give up your rights to file these claims by prevailing in your damage suit. The fraud and defamation claims can be pursued as totally separate and distinct causes of action.

Customer:

Thanks. I appreciate your help.

LegalBeacon :

You're welcome...it's been my pleasure to help! Take care!

Richard
Richard, Attorney
Category: Legal
Satisfied Customers: 56,030
Experience: Attorney with 29 years of experience.
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