When a commercial driver loses profits from being unable to drive his truck and is not at fault for an accident, and no injuries ensue, a downtime claim case will arise.
Adverse Party/Insurance Provider
The adverse insurance provider is liable for the downtime claim and there will be a maximum amount of benefits on the adverse party's insurance policy. When a commercial driver has his truck in the shop after repairs are completed, the total number of days are calculated as to the downtime. It is the downtime days that the truck driver is unable to drive for work and earn his pay. The adverse will send an adjuster to estimate the amount of damages and the truck will go to shop. Sometimes the adjuster won't add in all the damages, causing a problem for the client. The client's truck may end up at the shop longer or he may chose to go somewhere else, or he may instead get the insurance funds from his own insurance provider. In any event, the adverse insurance provider will expect that the truck owner try to get a rental truck to replace his truck while it is in the shop and mitigate the damages. The client should get proof that he attempted to replace the vehicle even if it is unique and impracticable to replace temporarily.
Proving Your Case
You will have to prove your downtime claim with Profits and Loss of the prior tax year, W2's, and paystubs. The adverse will request photographs of the damages vehicle and ensure there is no fraudulent claim on behalf of the client. As the attorney in the matter it is your responsibility to have knowledge of the prior negotiations or settlement offers so that you can come up with a fair contingency agreement with your client. If he didn't like the original offer and that is why he is hiring you, try for a contingency fee that takes this into account - such as you will take a fee if the settlement is above that which he was originally offered.
In hopes of settling the case out of court, prove your downtime claim with accurate figures and argue persuasively why the client is entitled to the amount that you are asking for. This may be considerably higher than what the adverse insurer has in mind and you may want to communicate what they original offer is before trying to persuade them for a higher settlement for the client. This is because a Profit and Loss for the year before in determining the settlement amount is not fairly accurate but this is what the adverse insurance company will use. It does not accurately portray what the client would have made and thus it can be argued that the client is entitled to a more accurate figure.
Calculating the Downtime Claim
The adverse insurance provider most likely has a pre-made form that benefits their company and not your client. Here, it will state the amount of downtime days, the amount of "actual" working days, the days the truck is being driven and so forth. I fill out the form with the client's best interest and cross out the terms that we do not agree on. The adverse insurance companies will use a formula to calculate the downtime loss . Be informed that a common method is to calculate the gross income for 90 days prior to the accident, however, I have found that the adverse may use as little as 30 days prior to the accident. I have calculated the downtime with my own formula of 90 actual working days prior and the income that was earned to the 90 days prior to determine the lost profit. Once this is determined you can negotiate with the adverse insurance provider.
A settlement should be documented with informed consent. A written consent form from your client will assist.
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