California Personal Injury and Insurance Blog

Parking Lot Danger for the Holidays

My friend Bob Kraft at Kraft & Associates in Dallas, TX has a great post this morning on the danger of parking lots during the holidays. Did you know that backing up accounts for 1% of drive time but 25% of car crashes? 

From Bob's post: "Bloomberg points out that “distractions from passengers, phones, the radio or intense parking-spot searches contribute to high crash rates in lots.” California officials “recommend that drivers check surroundings before entering their cars, look every direction when pulling in or out of a parking space, stay off the gas pedal while backing up and watch for pedestrians moving between vehicles.”"

I remember when my dad took a defensive driving course required by his employer. One of the points was to pull through parking spaces whenever possible so as to minimize your time backing up. It sometimes looks awkward to pull through the spot and you have to be careful, but it does make driving safer.

Remember, if you are backing up and hit a pedestrian, or a parked vehicle, you are going to be found at fault by your insurance company. That will increase your rates. Be careful this holiday season and pay extra attention when backing up! 

Driving and surfing - on your phone

I have seen a lot of car accidents in my life. I have seen a lot of car crashes as well. I have sen almost everything you can imagine when it comes to a car colliding or  two cars colliding. I have seen people putting on makeup, drinking, eating, texting, talking, and simply not paying attention. 

But, this surprises me. People do dumb things with their cars and their cell phone. I know people call and drive. I know people text and drive. But apparently almost 1 in 4 drivers is also surfing the internet and driving!

Now most of you probably think it is a kid issue. Kids, teens, even young adults want to constantly talk to their friends. When we were growing up, you had to go see them or talk to them from your home phone. Today, teens and young adults keep in touch with their cell phones more than anything else. 

However, I am wrong about who is doing this. "The increases are driven largely by the growing use of smartphones among drivers 40 and older, says Chris Mullen, State Farm's director of technology research. 'It's not just a youthful problem.'" Yes, you read that right. It is not just a youthful problem. My generation, people over 40, are doing this more than kids! 

By the way, it is against the law in many states to text and drive. In California, the law says you cannot text and drive. At least, that is what most people think. But, it is actually against the law to use your cell phone. That would include checking email, surfing the web, etc....

So it looks like people are driving and texting, driving and calling, and driving and surfing the web. This is a serious issue that people need to be aware of. We talk about it, but how many people still text and drive?

When you are out on the road, be careful. Your first job when you are driving is to get where you are going safely and to make sure its safe for you, and everyone else on the road. Do not get into a car accident because you are doing something other than driving! 

Drinking, Driving and the Holidays

Nine years ago I wrote about drinking, driving and the holidays. In that time, I have handled quite a few car crash cases every November and December. More than a handful of these involve DUI. For example, a new client came to me and was rear ended by a guy who was drunk. Sadly, this was not the first driving under the influence and causing a car crash. In fact, the officer who arrested him had previously arrested him for DUI.

Today, I heard this on the radio and had to pass it on. Every 15 minutes is a great program to educate young people against driving under the influence. For the rest of you, here are a few reasons not to:

1. You are probably going to kill or injure someone. By probably, I mean there is a really good chance of it happening! 
2. You will get caught at some point in time. It is a matter of when, not it;
3. You are probably going to kill or injure someone. Did I mention this yet?;
4. Ever try to get insurance with a DUI - it is not easy or cheap. Add in lawyer fees, court costs and other expenses and it is crazy expensive;
5. You are probably going to kill or injure someone. I think you may have heard this from me;
6. If 1, 3 or 5 happen, it will cost you. If you have insurance, your insurance company will pay more money if someone is injured than if you were sober. If you do not have insurance, you will pay more money. When I handle personal injury claims, if someone is injured by a drunk driver, the case is worth more money. If you are drunk, you can be personally sued for punitive damages. These are not covered by insurance and you generally cannot file bankruptcy to make these damages go away;
7. See 1, 3 and 5.

I hope you are all safe over the next few weeks. Please make sure you do not drink and drive. If you are with someone who has had something to drink, please make sure that they do not drink and drive as well. Be safe! 

Check your total loss paperwork carefully

I have come across quite a few total losses lately that are simply wrong. I would like to tell you that the values are wrong or that there is a dispute. But the last few that I have seen are wrong.

What do I mean by wrong? Let's say you have a Honda Accord. If the adjuster listed it as a Honda Civic, the total loss evaluation would be wrong. What if you had a Dodge Challenger and the adjuster put down a Ford Escort? That would be wrong as well.

These may seem like extreme examples. But, I have had quite a few similar examples recently. For example, my client had an Acura Integra Type R. The insurance adjuster evaluated it as an Acura Integra. Now, this isn't a trim line issue. For those of you who do not know what that means, trim lines are usually things like EX, LX, etc... after the type of car. Ford likes to use Limited, Eddie Bauer and other names.

But, with respect to the Integra, the regular Integra is a good car. The Type R is an even better car with significant upgrades in engine, steering, brakes and a few other bells and whistles. The Type R was also made in limited production.

When you get your total loss evaluation, make sure you review it closely so you can confirm that they are evaluating the right car with the right equipment on it!  

FAQ: WHAT IS THE DIFFERENCE BETWEEN RENTAL AND LOSS OF USE?

Question: My car was damaged in an automobile accident. Do I get a rental car? Do I get loss of use? What do I get?

All good readers of this blog know that you are entitled to a rental car if your car is damaged from a crash under two circumstances. First, if you have rental coverage on your auto insurance policy, your insurance company will pay for a rental car. Let's say your coverage is $600. That typically means your insurance company will pay $20 per day for up to 30 days. Although, read your policy carefully because I saw one that paid $30 per day for up to $20 days. What does this not mean? It does not mean that they will pay you $600 and you can go rent a Corvette for a week! 

Second, if the other person was at fault, their insurance will pay for you to have a rental car. Most insurance companies will only reimburse you. In this case, they will pay for a similar car to what you had. This does not mean that they will pay for an upgrade, but rather similar. They will not pay for the extra insurance, and if you have insurance, your insurance will cover you in a rental car in most situations. However, note that the insurance company may owe you for a similar car but will not tell you that. Rather, the adjuster will try to get you into a small car so that they can save the money. 

But what about loss of use? This is pretty easy. If you were not at fault, the other person's insurance is going to either pay for a rental car or loss of use. In other words, you cannot collect both. However, if you do not rent a car immediately, you can collect loss of use for the days you do not rent a car.

Example: Your accident is on day 1. On days 2 through 5, you do not rent a car. On day 6, you rent a car until day 10. You get 4 days of loss of use (days 2, 3, 4, and 5) and 5 days of rental (days 6, 7, 8, 9, and 10). Rental is basically what it costs to rent a similar car to what you had. If you had a luxury car, that is what you rent. If you had a Ford Focus, then you rent a compact car.

Loss of use is generally calculated at $20 per day. For some cars, it may be more. It is usually not less. But, the $20 per day number is a good number to start with.

In the above example, you get $80 plus your actual of out pocket rental expense. They will not pay for gas or the extra insurance (which most people do not need anyway), but they will pay for tax and fees.

So, there is a situation where you can get both - loss of use and rental. But, the adjuster will not volunteer this and will not offer to pay it. You probably have to fight with them to get paid loss of use.

And, remember, your insurance company will never pay loss of use! 

10 Things Insurance Companies Must Do To Keep Consumers

I have recently had several clients pulled their insurance from their long time insurance company and placed it with a different company. Both clients were very dissatisfied with the service they received for the payment of their cars and their medical bills. By the way, that makes these first party claims, which means nothing to most people, but in English, it means that insurance companies should treat you better than if it was a third party claim. In other words this was their own insurance company screwing them.  

In these situations, the insurer subsequently called to ask what they could do to keep the business. The clients told them that the poor customer service was the reason for the cancellations. So, if the insurers want to know what to do to keep their current clients, here are a few ideas:

1. Start treating people with respect.
2. Hire adjusters with a college degree. No disrespect to those without a college degree, but handling insurance claims requires a certain skill set that people learn in college. A lot of the skill needed is dealing with diverse people. You learn that in college. 
3. Pay claims timely.
4. Don't nickel and dime your insureds on their claims. If you owe $2,500, pay $2,500 not $2,450.
5. Make fair and reasonable offers on total losses. Pay the fair market value of the car, not what some company tells you it is worth.
6. Get rid of your complex phone systems. It shouldn't take me entering 25 digits to get to someone. Seriously, try calling USAA on a claim and tell me what you want to do when you are done. I would rip out my hair - if it wasn't so short to begin with! 
7. Start writing letters in plain English. People want to understand what you are saying. Four pages to say "We are investigating your claim" is overkill. 
8. Don't ask what you can do AFTER someone leaves. Be proactive in keeping your customers happy.
9. Stop forcing your insureds to be sued because you don't want to settle a claim.
10. Stop hiding your tactics. In this day and age, there is enough information available that people see what you are doing. Don't hide it. Just be honest with people.

Now, I know some of these will never happen. Heck, most of these will never happen. But, some of these are common sense ideas. It would be nice to see insurers go back to trying to keep their own customers happy, at least.

FAQ: Do you have a MIST case?

People hear the term MIST claim and they do not know what it is. They do not know if their claim is a MIST claim. You are involved in a car accident and someone says MIST.

Do you even know what MIST means? Probably not. And don't worry, most attorneys do not know what it means either! 

MIST cases are an acronym for:

Minimum
Impact
Soft
Tissue

The "minimum impact" part usually means there is less than $1,500 in damage to your car. This does vary by insurance company. Some will say less than $1,000 and some will say less than $2,000 or $2,500. 

The "soft tissue" part means that you have what is commonly called whiplash. You have a neck and back injury. Simple enough. There is nothing broken and you do not have a closed head injury, or a concussion. 

MIST cases are different from other cases. Insurance companies take these cases very seriously. They spend a lot of money defending them, investigating them and paying "expert witnesses" for their opinions. Insurance companies hate paying out on these. Your own insurance company will even fight you on an uninsured motorist MIST case. 

So, what do you do? Hire an attorney who handles these - a lot. Or better yet, hire someone who actually teaches other attorneys how to handle them.

I have written a book for attorney on litigating MIST cases. If you have a MIST case, you should talk to someone who has experience in MIST cases.

FAQ: Does the other person need to tell me how much insurance they have?

Q: I was involved in a car accident. The other person says they have insurance, but won't tell me how much insurance they do have. Do they have to tell me?

A: No.That's right. In California, a person involved in a car crash only has to disclose the name of the insurance company and the policy number. 

The Insurance Privacy Act protects all other information unless the insured (ie the other driver) specifically authorizes the release of the information. Anything beyond that is confidential unless they choose to share it with you.

Why does this matter? If you are involved in a significant crash, the other person may not have enough insurance to pay for the repairs to your car, your medical bills, or your pain and suffering. Therefore, it is possible that you may not be fully compensated for your injuries, especially when you consider that the minimum insurance limits in California are $15,000 per person and $30,000 per accident for bodily injury and only $5,000 for property damage. (There is actually a policy in California for low income individuals that pays even less - $10,000 per person and $20,000 per accident for bodily injury with $2,500 for property damage.

These low limits are one more reason you need to make sure that you have uninsured motorist coverage, including uninsured motorist property damage and uninsured motorist bodily injury. 

Choosing an insurance agent

I get asked often about picking an insurance agent. People buy a house and they want to find an agent. Or they want to shop around. Unfortunately, most people make the same mistake: they shop solely based on price. Insurance is something that should not go to the lowest bidder, like building a house. You want someone good.

I tell clients who call me that they need to like their insurance agent and NOT shop on price. Insurance agents can make the price look good in a lot of ways, but most of those end up costing money in the long term. They need to find someone who will work with them, explain to them why one policy is better than another, answer their questions, and be able to walk them through this process.  

For example, you look at two policies that look the same, but one policy provides replacement cost coverage on your contents and the other does not. The replacement cost policy is better for most people, but will be more expensive. Is that something you should pick? A good agent will help you with that. 

Of course, sometimes you want someone independent to look at your policy for you. I still offer free insurance reviews by simply emailing me at [email protected] and asking for a review. 

Auto Insurance property damage issues - again

I get a lot of calls in a month about property damage issues. The big ones are "How much do they owe for my car?" and "Why isn't there enough to pay for my repairs?"

First, property damage claims, especially if it is only property damage and their is no injury, are difficult to take as an attorney. If your repairs are $10,000 and I take a contingency fee on it, you end up with $7,000 - probably. Now you don't have enough to repair your car. So you aren't happy. Hence, most attorneys won't take a property damage only case. 

Second, how much do they owe you? It depends. There are a few situations that come up:

    a. Your car is repairable and you have collision coverage - your insurance company owes you to fix your car;
    b. Your car is a repairable and you have no collision coverage - if the other driver is at fault, they owe you to repair your car plus either a rental car or loss of use;
   c.  Your car is a total loss and you have collision coverage - your insurance company owes you the fair market value of your car (note it is not the blue book value of your car);
   d. Your car is a total loss and you do not have collision coverage - if the other driver is at fault, they owe you the fair market value of your car plus either rental or loss of use.

So A and C are pretty clear. The problem comes with B and D. If you do not have collision coverage, you may be at the mercy of the other driver's insurance company. If that driver does not have enough insurance, you may not get paid in full for your car. The insurance company will only pay up to the property damage limits of the other driver. Hence, if you have $6,500 in damage and their limit is only $5,000, the most the insurance company will pay is $5,000. You will NOT be paid in full. 

This is one reason you should carry collision on your car. It is possible that someone else could damage your car and you may not get paid in full for the repairs.

Of course, if you have any questions, you can call my office or email me for a free consultation.