Lowell Steiger's Los Angeles Law Blog

Car Rental Tips After An Accident: You're Entitled to Dollars and/or An Equivalent Vehicle

Insurance companies oftentimes do their best to not treat you fairly or equitably.  One example of this is when the at-fault driver's insurance carrier provides you with a rental car with a "take it or leave it" attitude.

 

In California, you are entitled to be provided with a vehicle of equal value to the vehicle that was damaged as a result of another driver's negligence.  For example, let's say that you get rear-ended in your new Toyota Prius.  The other person's insurance company says "yep, our driver was at fault" and then allows you $20 a day for rental car.  Well, an equivalent Prius may rent for $50 a day.

You are entitled to rent a $50-a-day car and have the other party's insurance company pay for it (subject to, among other things, his or her property damage policy limits).  Period.

Now, let's change that scenario a bit: For whatever reason, you don't want to rent a car during the time that your car is in the shop.  You're entitled to make that choice.  Let's take it one step further: Your car is in the shop for six weeks (42 days).  You will be entitled to $2,100 in real dollars to compensate you for the time that your car is in the shop.  In other words, you do not have to actually rent the car in order to be compensated for your loss of use.

OR what if you rent a car for $25 a day?  You'll be entitled to the difference in cash (well, in check).  So, you rent a car for 42 days at $25 a day for $1,050 but you were entitled to a car renting for $50 a day. The insurance company should pay you the difference of $1,050 in the form of real dollars.

Here's the law (CACI 3903M): To recover damages for loss of use, [name of plaintiff] must prove the reasonable cost to rent a similar [item of personal property] for the amount of time reasonably necessary to repair or replace the [item of personal property].

 

http://www.youtube.com/watch?v=Z8tflTskbV8  

Uh Oh, I'm Hurt & Other Driver Doesn't Have Enough Insurance! Underinsured Motorist Claims in California

Q: The following excellent question was posted on www.avvo.com: 

I was in a severe car accident as to which I was not at fault. However, I have a lawsuit going against the other driver, and may or may not be able to to be compensated by the other driver's (who was insured) insurance company. My question is, if I win my lawsuit against them, can I still file for an underinsured motorist claim with my insurance if the other driver has only the minimum limits of coverage required by law, but those limits are insufficient to compensate me fully for my injuries. Do the same terms apply if I lose my case?

Also, do I file an underinsured motorist claim before or after my case has been settled regardless of the outcome of the lawsuit?

A: Here's my answer to this most excellent question:

The rules are different in different states.  In California (quoting from the Rutter Group California Practice Guide: Personal Injury):

"Underinsured motorist cases—consent not required: An insured's failure to obtain the insurer's consent to a settlement with (or judgment against) an underinsured motorist does not result in loss of the insured's underinsured motorist coverage. Reason: The insured cannot recover from his or her carrier until after the bodily injury limits of the tortfeasor's policy have been exhausted by settlement or judgment (Insurance Code Section 11580.2(p)(3)). The carrier could thwart the insured's ability to collect on the uninsured motorist coverage simply by refusing to consent to a settlement. Moreover, the carrier does not have a statutory subrogation right against the underinsured tortfeasor and thus does not need the protection of a consent provision. "

You should always put your carrier on notice of an accident and, assuming you have uninsured motorist coverage, reserve your right to make an uninsured or underinsured motorist claim.

For practical reasons it is my practice to always contact my client's automobile insurance carrier, open the claim, get my client's policy limits in writing, advise that we are going to make an Uninsured or Underinsured Motorist Claim and ask them to tell me, in writing, exactly what they will need in order to comply with their particular requirements for a UIM Claim.

So, bottom line: You will NOT waive your UIM claim just by settling with the other party's carrier. However, subject to very few exceptions, you MUST, absolutely MUST, exhaust their policy limits (not a single penny less) in order for your UIM Coverage to kick in. Speak to a lawyer -- this is not something that anyone should handle on their own because the claims can be tricky.

I regularly handle Underinsured Motorist Claims for my clients. For various reasons, UIM Claims are a favorite of mine.

 

 

Bisexuality and Defamation? Say What?

Recently, a person asked the following question on www.avvo.com:

Her Question: My ex boyfriend posted he was bisexual on a dating site.  I had no idea.  If I print a copy of our messages and his profile would that be considered slander?

My Answer: The following answer applies to California law. I believe that the general principles are the same throughout the U.S. but, to be sure, you should speak to an attorney licensed to practice in your state.

In order to be sued for defamation, your ex-boyfriend would have to prove ALL of the following:

The elements for a cause of action for defamation are:
(1) A false and defamatory statement concerning the plaintiff (i.e. your boyfriend)

(2) An unprivileged communication to a third party

(3) Fault by the defendant amounting at least to negligence

(4) Special harm, damage to reputation, or the actionability of the statement irrespective of any special harm. Damages

If what you wrote is true, the analysis would stop at #1 above. However, if your boyfriend makes a claim against you, then you will need a lawyer to defend your rights.

Defamation cases are very, very tricky and, because emotions run high.

But, remember, truth is an absolute defense in a defamation case.

Click here to read an in depth analysis of libel and slander which are the two different types of defamation.