Diminished value question for CA/MN (experts plz help!)

[skim]

I did a search on this and found this thread, but it's only covering NC - http://www.m3post.com/forums/showthread.php?t=262046

I have a question regarding DV claims for an accident that took place 3 months ago. Here's the recap of the accident.
1. Got rearended - damage around 15k
2. Hired a lawyer who is doing shit and I want to drop his ass since I am the one still doing all the work - he says he only deals with the pain and suffering portion, not the property damage and doesn't want to get involved in this, wtf
3. Accident happened in CA. The party at fault has Ameriprise (I have allstate) who seems to be based in MN.

Lawyer is saying the insurer does not honor DV claims. I asked if he fought for it, and he said they "told" him and sent him a letter saying it won't be honored. I think he just called them up and asked and is passing along the answer after the 30 second call with them.

So my questions are..
1. When a lawyer is involved and he's only dealing with pain&suffering portion, do I call the other party to deal separately on DV claims?
2. Does anyone in CA or MN have experience fighting for DV and got some money? Am I wrong to expect to be paid for the loss of the value?!?
3. If I drop him and get another lawyer, do I need to compensate for my prev lawyer's time even though I think he did jack shit?

God.. this is pretty frustrating. I thought lawyering up would ease my life. Thanks in advance, guys..

[spectrumphoto]

To Sum up your DV claim concern... Good Luck in California. It is very, very rare if not nearly impossible to get DV in California....

If you switch lawyers, then yes your first lawyer will expect to be compensated for work preformed. Weather he attaches a claim to the lawsuit or depends payment before releasing your file is up to them.

You can try to contact the other parties insurance carrier, but I can guarantee that they will not and can not talk to you since you have hired legal representation and everything has to go through legal counsel now. You can try to take the at fault party to small claims for the DV, but you will need your insurance carriers approval if you are going through your carrier.

My question is why are you not involving your insurance carrier. It is their job to protect your interests, and that includes negotiating a settlement with the at fault carrier (bringing your car back to a "pre accident condition"), including but not limited to acquiring legal representation for you at no additional cost to you if needed. So why have you hired an attorney again??

[drburton]

Shouldn't have hired an attorney. As soon as the insurance company knows an attorney is involved they freeze up and immediately start challenging all claims. In fact, Allstate was in the media for having an internal policy that basically said any claim with an attorney would be subject to dispute.

Lose the attorney. Just work with the insurance company directly.

[MN M3]

Just because the other driver's insurance carrier is headquartered here in MN has nothing to do with MN law - the laws of the state where the collision happened control this, namely CA. Spectrum is correct - you aren't going to get "diminished value" in CA, or most any other state. The bottom line is that the money spend on repairing the vehicle is supposed to return it to a pre-accident condition. You really aren't entitled to MORE money on top of that for some mythical "loss of value." I know some states allow for that, but, really...how on earth does one calculate that? It's nothing but 100% speculation. If the car isn't totaled and titled as such, few people are ever going to know it was repaired unless the repair work was s*it.

The OP probably doesn't want his insurance carrier involved because it would mean filing an accident claim against his own policy. Can anyone say skyrocketing premiums or even non-renewal? And, if the other driver's carrier doesn't pay up immediately, then the OP's carrier is totally within their rights to jack the premium or not renew the policy because of the claim. I guess I'm a little suspicious here - if this is such a clear cut case of liability on the other driver, why is the other insurance company playing hardball, and why did the OP feel the need to hire his own attorney?

And, yes, if you fire your privately hired attorney (which is what the OP had to do if he didn't file a claim with his insurance carrier), you'll have to pay him/her for all work done to the point of termination, regardless of whether you like it or not.

[JBJ]

Hello all, I am a personal injury (PI) attorney in Los Angeles and mainly deal with car accidents. I don't know everything, but I think I know enough to answer the OP and offer some valuable advice (hopefully ). So I'll try to clear this up for you.

Sorry, this is long, but I'm trying to help out my fellow M-bro out, so.....

To the OP, here are my answers to your questions:

1. If your present attorney is only handling your bodily injury (BI) claim, and not the property damage (PD) claim, then it is up to you to deal with the other driver's insurance company, but you should get your own insurance company involved and make them help you (unless you hire another attorney for it). BUT, it's rare (at least to me) that a PI atty would only handle your BI claim and not your PD claim. That sucks and it's not what I do. I, as well as all other PI attorneys i know of in LA, handle both claims.

2. Let me start by saying that I don't have any experience with Diminished Value (DV) claims. And I don't have a definitive answer for you. But I do know a bit. From what I've heard and read, compensation for diminished value is a very difficult thing to obtain in CA, as others in this and other threads have stated. More and more of my clients are asking me about it and it is a concern for them, and justifiably so. Under CA law, insurance companies are under a duty to restore your car to "pre-accident" condition (part of the the "making you whole" doctrine). This is satisfied by them merely repairing your car, as they do. That's all they have to do. However, in another thread, someone posted a link to CA case which granted the Plaintiff (bringing the DV claim) compensation for the DV of their car and it's a precedent case which shows that you're entitled to DV. But in practice, I believe it's different and much more difficult. The actual diminished value is hard to ascertain and can be too speculative. Even so, if it's a small amount, it's not gonna be worth the attorney's time to pursue it. And it may have to be brought as a small claim (no attorneys allowed). Our main concern on car accident cases is the bodily injury claim (I personally don't even take a cut of the client's compensation for their property damage).

3. At any point, you can sub out your current atty and hire another one. It's that easy. What will happen is your new atty will send a certain letter to the previous atty notifying him that you have retained him/her. Then the previous atty will put a lien on the case and notify the new atty and insurance companies about this. When the case is settled, the new atty will have to call and negotiate the lien with the previous attorney. But this doesn't affect your cut of the settlement because they're dealing with the portion of the settlement that goes to atty fees (usually 33 1/3 %).

Now to address some of the other comments and responses:

1. Hiring a PI attorney should be the best decision you make and should make everything MUCH easier on you and take away your stress. That's essentially our job. To get your car fixed and to make sure you get just compensation for your medical expenses + pain & suffering + loss of earnings (if you lost income due to the accident). From what I know, your insurance company will not hire an atty for you (but when you are at fault, your insurance company will provide you with a defense atty if the case goes to litigation). Even in your case where liability is clear (you got rear-ended so other guy at fault) you should still hire an atty if you're injured. Insurance companies, as we all know, are crooks and sharks and will do anything and everything to get rid of you. Essentially, they'll admit fault, take care of your car, and throw $500-$1000 at you for your med expenses and make you sign a release. Sounds like good money, but it's no where near what you're entitled to. And you won't know what you're entitled to until your treatment is done and your medical bills are calculated. A good attorney will make sure you get the proper treatment without paying a penny for it and increase the value of your case to maximize your settlement. And b/c PI is done on contingency, it costs you nothing b/c we take our cut from the settlement (which the insurance co paid). And your med expenses are paid from that too.

2. In your case, since liability is clear, if you have collision coverage, it's okay to fix your car through your own insurance b/c they'll fix it and send a subrogation demand to the other guy's insurance and get reimbursed. Once they are, they'll reimburse your deductible to you (unless there's a policy limit issue, in which case it's pro-rated).

3. And yes, CA law applies since the accident took place here. It doesn't matter that the other driver's insurance is based in MN. ACTUALLY, out of state insurance companies are known to us PI attorneys to give bigger settlements So it's good that this is the case.

Again, sorry for the long reply, but I'm just trying to help. Hope it answers your questions and concerns. (Plus, I haven't posted in a while so maybe I just got excited . Good luck and hope you have a healthy and speedy recovery. If you have any other questions, don't hesitate to ask my friend.

[skim]

Thanks a lot for all the replies, guys. And THANK YOU JBJ for the extremely detailed response. I learned a lot from it. This is my first accident (I guess I've been pretty lucky on the road until this happened) and all of this was really new to me. It's one of those where I'd read about other people's stories on forums and reply "sorry to hear, hope for the fast recovery and everything works out for you" and now that it happened, I'm learning about how things really work. So I hope everyone else would also benefit from my case at the same time (not that I wish this ever happens to anyone but it sucks to share the road with some lousy drivers).
How I hired the atty in the first place is that the body shop I dropped the car off at stated that it should make my life a whole lot easier and that I'd get the compensation I deserve. To be honest, compensation is not really what I was after although of course it's a very nice to have. But I just didn't want to be reminded of this accident by having someone else deal with it. But this shitty atty was asking me to obtain and fax him police report, get medical files from docs and give them to him, etc. I was like "so what will you be doing? I thought all of this was part of YOUR job?!? sounds like you are just being one expensive bookkeeper not an atty" and that's where things started going south with me and him.
Anyways, even though compensation is not the #1 thing I am after, since everyone around me was saying "oh man.. that's an M3 that got hit and it'll be worth a lot less when you decide to sell" and I thought that since I have an atty, I'd have him handle this as well, but of course he said he only deals with P&S which he didn't tell me in the beginning he only deals with P&S portion. I just assumed that he'd deal with EVERYTHING related to the accident. So another lesson learned is that everyone make sure from beginning if your expensive atty will handle everything or just P&S.
But really.. thanks everyone..

[MDCTFTW]

Won't happen in CA. You gotta sue the guy.

[skim]

Naw, no suing. I just wanted to make sure what my atty was saying was true and that he was/is actually working. I feel like a manager who always needs to double check someone's work with this guy. But along the way, I am learning as well, so I guess it's a good thing.
Thanks everyone.

[BigHat]

Well, ask yourself a question. You see two cars with identical features. You run a CARFAX on both and discover one has been in an accident. Do you even consider buying the damaged one, let alone pay a like amount?

This is yet another great reason to lease your car. It's their headache dealing with any diminished value -- and YES. it's for real.

[spectrumphoto]

I still dont agree on going out and hiring your own attorney right off the bat. Part of the premiums that you pay to your carrier is to cover the costs associated with being involved in an accident.

LBJ was right in the fact the your insurance carrier will not assign you an attorney off the bat if you have been involved in an accident, rather it is their job to work with the other parties carrier and get your auto fixed as well as other details like rental cars, medical costs, lost wages. The carriers will first negotiate with eachother while fault is being assigned and basically do all the behind the scenes things while your car is getting fixed. Typically, there is no need for any attorney involvement. But if there is, then your insurance carrier will first assign in house counsel to your claim (by this time though your car will be repaired and you will be well on the road with no $$$ out of pocket) If the case becomes extremely complicated (massive life changing injuries, a auto pile up with multiple claimants, etc) then your carrier will get you outside specialized counsel to handle the case, at no cost to you (it is all part of your premium that you pay per month)

This way you dont have to worry about it, nor do you have to worry about paying hourly rates to your own attorney or contingency fees to a PI attorney. If the judgment does not assess attorney fees to the other party on top of your award then their fees do come out of your award. (Typically 30% award if settled and 40%+ if the case is tried)

The one key that I can give you when dealing with your insurance carrier, but more importantly someone else's insurance carrier are these 3 little words. "Bad Faith Claim"
If you are having difficulties getting anywhere with them, mention that you feel that they may be acting in bad faith. Such a claim can open up the carriers obligations and takes policy limits off teh table so to speak in simple terms.

Obviously LBJ is biased his way as being a PI attorney and I am sure that my stance is biased my way seeing that my fiancee is a Insurance Defense Attorney, so hopefully with both our information, everyone here can benefit from the best of both worlds.

[///MML]

skim,

I had a DV issue on my 2002 e46m3 5 years ago. Here are the facts;

1) I recovered $5k for DV via small claims court (max allowed). Now it's $7.5k max claim in CA.
2) Other insurance company offered $2k for DV. They offered this in court before hearing began. No offer before then.
3) My car had $8k in repair costs
4) Other driver was 100% at fault
5) Accident was in CA. Both drivers live in CA.

DV is provable and recognized by law as a loss of value. Small claims is a little bit of work but very non threatening for an average joe (ie non lawyer). For $5k well worth my time. Drop me a PM for more info/help.

Good luck...