FL loss of use: Liable for only repair time, or total if claim approval drags out

[onetimer]

GF was hit 20 days ago. Tire won't hold air. Ins company has been very slow to respond. Only one returned communication, and it was a lowball for 40% less than my lowest estimate with no mention of loss of use.

I recently read that in FL they are liable for loss of use regardless of whether GF rents a car (I've been driving her everywhere since she has no money to rent car and cant use hers). But what I've read only talks about the REPAIR time (6 days according to estimate).

They are clearly in no hurry, and I can't keep rearranging my life to drive GF around, so are they ONLY liable for the repair time, or for the ACTUAL loss of use which as of today is 20 days PLUS repair time?

 

[marindependent]

GF? Girlfriend? Gluten Free? Ground Floor? Good Friend? Graviational Force?

 

[onetimer]

GF? Girlfriend?

yes

 

[Al3x Lee]

This would be one of those times I would refer to the policy language. Which insurance company are we dealing with?

 

[onetimer]

This would be one of those times I would refer to the policy language. Which insurance company are we dealing with?

Their insurance not mine. Company fleet vehicle insured by United Fire Ins with a company called Sedgwick processing the claim.

 

[Al3x Lee]

Their insurance not mine. Company fleet vehicle insured by United Fire Ins with a company called Sedgwick processing the claim.

The claims world is a mess right now. From my interpretation, it sounds like you're correct, but you'll probably have to duke it out with the adjuster unless you want to take them to small claims court.

Florida courts have noted that the Restatement (Second) of Torts loss of use provision applies to tort actions involving a damaged motor vehicle so as to include a separate claim for loss of use damages. Damages may amount to the reasonable rental value of a substitute vehicle during repairs, regardless of whether a rental vehicle was actually obtained or whether the vehicle is a pleasure automobile. Meakin v. Dreier, 209 So.2d 252 (Fla.2d Dist. 1968); Alonso v. Fernandez, 379 So.2d 685, 687 (Fla. App. 1980).

Loss of use damages are only available when an owner suffers a complete deprivation of their property, which includes time for repair when the property cannot be used. AT & T Corp. v. Lanzo Const. Co., 74 F.Supp.2d 1223 (S.D. Fla. 1999). Loss of use recovery does not require actual rental of another vehicle. Meakin v Dreier, supra. Courts have determined that loss of use special damages may be awarded in the event of a total loss. Wajay Bakery, Inc. v Carolina Freight Carriers Corp., 177 So.2d 544 (Fla. App. 1965).

The Florida Supreme Court’s Standard Jury Instructions for civil cases provides for loss of use in property damage claims, noting that the jury should also “take into consideration any loss to (claimant) [for towing or storage charges and] by being deprived of the use of [his] [her] [its] (name property) during the period reasonably required for its [replacement] [repair].” Florida Standard Jury Instructions: 501.2 Personal Injury and Property Damages: Elements

Updated 1/13/2022 https://www.mwl-law.com/wp-content/uploads/2019/01/LOSS-OF-USE-CHART.pdf

 

[onetimer]

... you'll probably have to duke it out with the adjuster unless you want to take them to small claims court.

Any tips on that? Their system is a PITA. Most of my calls have gone unanswered. It took them weeks to provide a (40% low) offer, and they've yet to even acknowledge that she can't drive the car except that their appraiser mentioned tire losing air in report.

Is my GF under some obligation to mitigate the damage by paying for a new wheel and tire out of her own pocket first before they pay just to make the car driveable? Even that would take time as they need to be shipped... plus their ridiculous offer was for HALF the actual cost of the cheapest matching replacement wheel I could find, and took a 1/3 betterment deduction for a tire that's only maybe 3 months old with 90%+ of ithe warranty left.

 

[Al3x Lee]

Any tips on that? Their system is a PITA. Most of my calls have gone unanswered. It took them weeks to provide a (40% low) offer, and they've yet to even acknowledge that she can't drive the car except that their appraiser mentioned tire losing air in report.

Is my GF under some obligation to mitigate the damage by paying for a new wheel and tire out of her own pocket first before they pay just to make the car driveable? Even that would take time as they need to be shipped... plus their ridiculous offer was for HALF the actual cost of the cheapest matching replacement wheel I could find, and took a 1/3 betterment deduction for a tire that's only maybe 3 months old with 90%+ of ithe warranty left.

@adjusterjack is a retired claims adjuster who can probably give some good advice if he provides his input. I'm an independent agent on the west coast. My advice would be to be persistent. The rule of the squeaky wheel will apply in the current world of claims adjusting. From what I've heard, there's a massive shortage of claims adjusters currently. That's probably why United Fire is using a contracted claims adjuster and why you're struggling to get a response from them.

It sounds like you're already documenting everything and have somewhat familiarized yourself with your rights. I would just bother the claims adjuster consistently (Daily if you have to) and refute their estimates with logic. Part of their job is to try and save the insurance company money, but they have a duty to indemnify you, so if they're truly low balling you, let them know why their estimates are too low.

Don't sign anything until you find a satisfactory compromise.

You could seek legal aid, but it's likely not worth the cost for a claim of this size

 

[adjusterjack]

Is my GF under some obligation to mitigate the damage by paying for a new wheel and tire out of her own pocket first before they pay just to make the car driveable?

Yes. There is as much case law requiring mitigation as there is on loss of use. It was reasonable to expect that she could replace a tire and wheel relatively quickly to make the car driveable. Failing to do so means not getting paid for loss of use for the weeks since the accident that she did not mitigate. Lack of mitigation is always a defense against the amount of damages that a liable party owes.

The non-legal doctrine of self-preservation also comes into play. The other driver's insurance company is not her insurance company and owes her nothing until a court of law says so and says how much. Until then you do the best you can with the hassle and engage in self-help to reduce the hassle.

Buy the tire and wheel. Then there's no question about the cost as long as it's the same factory wheel and tire. Get the car driveable. Submit the bill for the tire and wheel to the other driver's insurance company and wait for the claim to be settled and the rest of the car repaired.

If you are concerned about delivery time, get a used wheel from a junkyard and take it to a tire store. Instant fix.

This is the kind of hassle that everybody goes through with claims against somebody else's insurance company.

That's why you should buy collision and comprehensive coverage along with rental reimbursement from your own insurance company. If you don't you are self-insuring against a potentially expensive loss.

I would just bother the claims adjuster consistently (Daily if you have to) and refute their estimates with logic.

Common misconceptions. The adjuster could have 100 claims open that he's trying to handle at the same time. There's a limit to how much time he can devote to any one claim. You get put on a pile and the claims get handled one at a time. Calling every day is likely to get you shuffled to the "other" pile, if you get my drift.

It took them weeks to provide a (40% low) offer

For what? Is there other damage to the car besides the wheel and tire. If so, take that estimate to a repair shop that has worked with that insurance company and knows how supplements are handled. Ask them if the car can be repaired for that price. If it can't, the shop should deal with the insurance company for a supplement. They know how to do it.

Hassling the adjuster isn't going to get you very far. Being pro-active with a repair shop is a better avenue.

 

[onetimer]

Yes. There is as much case law requiring mitigation as there is on loss of use. It was reasonable to expect that she could replace a tire and wheel relatively quickly to make the car driveable. Failing to do so means not getting paid for loss of use for the weeks since the accident that she did not mitigate. Lack of mitigation is always a defense against the amount of damages that a liable party owes.
...

That's why you should buy collision and comprehensive coverage along with rental reimbursement from your own insurance company. If you don't you are self-insuring against a potentially expensive loss.
...

For what? Is there other damage to the car besides the wheel and tire...

Hassling the adjuster isn't going to get you very far. Being pro-active with a repair shop is a better avenue.

There is enough other damage that it totals the majority of the total value of the car. Between the carfax being screwed now and the total damage, GF is giving serious consideration to using the money instead to selling the car as is and using the money from the sale and settlement to replace the car.

After running the numbers, I'd have to agree that it's just not worth dumping nearly 70% of the value of the car into fixing it just to then have trouble selling it later because of the damage they caused.

I've been hit a couple times before and it's always been settled quickly. 2/3 of the calls I've made to this company have gone unanswered, they have no way for me to check in on claim without waiting 45 minutes on hold just to be ignored, and it took them 3 weeks to generate a quote that cites among other things a wheel pulled from a junk yard when the actual wheel new is easily available.

I wrote extensive email last night refuting their quote line by line and adding in a bunch of lines from 5 different quotes I got.

I also said they've known for 3 weeks now that the car was undriveable , and have consistently dodged communications where I tried to expedite the process or make arrangements, and I would therefore not accept an offer that did not indemnify her loss of use for the going rate which I determined locally to be $25/hr for a compact car for the period from the accident until the repairs are finished. Their own appraiser weeks ago noted that the tire wasn't holding air, that both the tire and wheel needed replacing, plus a 4 wheel alignment, etc.

We're not just talking about fixing a flat here. Is there no assumption at all that the burden of financial hardship on GF to pay for all of these things out of pocket is unreasonable when she has no fault? We're talking about a damn drunk driver with an open container in the cabin and an empty 12 pack in the back who openly admitted not only fault, but that he had just caused another accident the week before... although police refused to either fill out a report or search his vehicle since they were apparently late to dinner and don't like paperwork.

I DO have rather extensive coverage through State Farm, but they advised me to go through at fault party's insurance instead to avoid being stuck with deductible.

Money is tight.