If your car has been damaged and needs repairs, you are entitled to what is called damages for loss of use of the vehicle. The Court has stated that a Plaintiff is entitled to damages for loss of use of the car during the time of repair or, where the property is a total loss, until the property can be replaced. Reynolds v. Bank of America Nat'l Trust & Sav. Ass'n (1959) 53 Cal. 2d 49. Generally, this measure of loss for the damaged vehicle is the cost of a rental car during the applicable time period. Please be aware that it is only the cost of the rental car and not insurance or sales tax.
Damages are Limited to Actual Loss and Actual Use
The damages are limited to the loss of actual use; a plaintiff who did not actually use the property cannot recover for loss of the opportunity to use the car. Metz v. Soares (2006) 142 Cal. App. 4th 1250, 1256--1258. In the Metz case, the Plaintiff was attempting to get damages for a vintage car. He had not driven the car in nearly five years prior to the destruction of the vehicle by the Defendant. The Court found that because the car was not regularly used that the Plaintiff was not entitled to any loss of use.
Be prepared to provide your attorney with evidence to support this claim.
Diminution of Value of Your Car
Diminished value means the market loss that a vehicle suffers as a result of being in an accident. If your car was damaged as a result of a collision, it may not be worth the same amount as it was prior to the accident.
With the proliferation of consumers gaining access to a vehicle's history through websites like CARFAX, a vehicle that has been involved in accident, sometimes even a minor accident, has diminished value. This could affect the trade-in value of your vehicle, as well as the resale value. In some situations this is a recoverable, compensable damage.
No First Party Claim for Diminution of Value
When you make a claim against you own policy, it is considered to be a first party claim. Generally speaking there is no first party claim for diminution in value for your motor vehicle. In most cases, this means that you cannot collect against your own policy for any loss in value your automobile suffered due to an accident.
This is generally the law in California. In Ray v. Farmers Ins. Exchange (1998) 200 Cal. App.3d 1411, the Court concluded that once an automobile is "repaired to its pre-accident safe, mechanical, and cosmetic condition" the first party insurance company's duty is discharged. Keep in mind that the above court decision was based on the language in the auto insurance policy itself.
Claim for damages against Defendant
There is a claim for damages against the individual who struck your car. This recovery is limited to the difference between the fair market value of the vehicle before it was involved in an accident and the market value of the vehicle after it was in accident and has been repaired. The court stated that "the measure of damages is the diminution in the market value of the [vehicle]aEUR?diminution of market value is not specifically excluded because it is not a 'cause' of loss; it is the measure of a loss caused by something else." State Farm Fire & Casualty Co. v. Superior Court of San Diego County (1989) 215 Cal. App.3d 1435.
Evidence Establishing Diminution in Value
While the above concept is easy enough to understand, finding evidence to establish the claim for these damages is a bit more difficult. It has been suggested that a party find the same car -- one that was in an accident and one that was not in an accident -- and use the difference in value to make this calculation.
Finding two of the same cars for sale is no easy task. It may be better to ask family members if they know anyone who works in the auto industry. With their help, you may be able to find an expert to make opinion on the difference in values. You may even want to ask your body shop if they can offer such an opinion.
As with most claims that are involved in personal injury actions, mitigation is very important in your property damage claim. Black's Law Dictionary defines mitigation as "the principle requiring a plaintiff, after an injuryaEUR?to make reasonable efforts to alleviate the effects of the injury or breach. If the defendant can show that the plaintiff failed to mitigate damages, the plaintiff's recovery may be reduced."
One of the first arguments an insurance adjuster will make is a party's failure to mitigate their losses. The best way to avoid this argument is by acting quickly in these situations, if you are able to do so. After an auto accident, get your car to an auto body shop as soon as possible in order to get an estimate. If you delay without a valid excuse, the insurance company will argue that you failed to mitigate your damages.
For more information regarding these claims, please contact me for a free consultation.
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