Another Case of Legal Advice Needed...

[HudsonHawk]

Since OWA is pretty well recognized as a legitimate substitute for a law firm...

The situation:

I was involved in an automobile collision on 12/19.  I was at "the place", and was traveling on a narrow county road, when I encountered an 18-wheeler hauling live chickens traveling in the opposite direction.  Being that I was operating in a safe and controlled condition, I was able to pull as far to the right shoulder as possible, and come to a complete stop, thinking the 18-wheeler would do something similar, so I could back up and let him pass.  However, the 18-wheeler continued and tried to pass me, crossing over the center of the road (it was on a bit of a curve), and a protrusion on the back end of his trailer struck the rear driver's side of my truck (which was on the shoulder of the opposite side of the road), ripping the rear quarter panel open like a sardine can. 

The driver of the 18-wheeler refused to give me any information (although he is required to by law), saying I had to wait until his supervisor arrived, which would hopefully be in a couple of hours.  Obviously that didn't sit too well with me, so I called the local sheriff's office, who called DPS and a DPS trooper eventually arrived.  The DPS took all the information and we went on our way.  The other driver still refused to give me any information, but I was able to get a financial responsibility phone number from DPS (still not the other driver's name).  After about five different entities, I finally got ahold of their claims management people early last week.  Since then, however, nothing.  I was finally able to get information on the other driver from the published accident report.

Now I am getting the runaround from the other driver's "insurance" (I'm assuming they are self insured).  They show no interest in returning emails or phone calls (not surprising since their business model is predicated on not paying claims).  At the scene the other driver said "hey, I didn't have time to slow down, not my fault", and both the driver and his supervisor suggested "it was just one of them things, no foul, every body go their own way" (no damage whatsoever to the 18-wheeler, of course).  The DPS trooper said it's not the DPS's job to assign fault, they just document what happened.  It's up to the two parties to decide who pays for what. 

I don't want any compensation other than for them to fix my truck, but it's been 11 days now without a vehicle, and the inconvenience is starting to mount.  Do I need to lawyer up?  What type of lawyer handles such things?

[Uncle Charlie]

I'm not a lawyer, but my similar experience was to submit the claim into my insurance Co...they go me squared away and then they went after the other company.

[HudsonHawk]

I'm not a lawyer, but my similar experience was to submit the claim into my insurance Co...they go me squared away and then they went after the other company.

Subrogation.  That's another alternative, though it puts me at risk for both my deductible and the claim.  I'm trying to work though the other driver's coverage, but I may have to go that route. 

[NeilT]

I think you got to go to your insurance.  you're exactly right, your risk is the deductible, but otherwise your cost is having to deal with it.

[HudsonHawk]

I think you got to go to your insurance.  you're exactly right, your risk is the deductible, but otherwise your cost is having to deal with it.

I'm trying not to do that, because if they can't recoup the cost, it would be the second claim on my vehicle in the last six months.  I'm guessing they'd drop me like a wide open Jacoby Jones.

[NeilT]

I'm trying not to do that, because if they can't recoup the cost, it would be the second claim on my vehicle in the last six months.  I'm guessing they'd drop me like a wide open Jacoby Jones.

You got a place, why the hell aren't you on Texas Farm Bureau?

ETA:  Do you give up anything under the policy if you don't report the accident?

[HudsonHawk]

You got a place, why the hell aren't you on Texas Farm Bureau?

Because I don't know who they are.  I'm still new to being a land baron.  

ETA:  Do you give up anything under the policy if you don't report the accident?

I've reported to my insurance, but wanted to handle it through the other driver's.  My insurance said I could simply file the claim with them and they'd take care of it, but there'd be a payout on my record.  Or I could try to handle it all through the other driver's.  Or they could pay it and go after the other driver's.  If they recoup, it would still show no payout and it wouldn't affect my rate or possibility of non-renewal.  But if they couldn't get the other to pay, I'd be on the hook.  My insurance said it was my choice.  I said I'd try to work directly with the other insurer, but if I got nowhere, I may have to have them handle it.  So to make a long story even longer...I've already reported it to my insurer and shouldn't give up anything under my policy.  

But I was wondering...if I get my insurance to pay and then have them go after the other driver, do I give up any rights?  My understanding of subrogation is that I transfer my rights to my insurer and I have to live with whatever they settle for with the other insurer, which may or may not be what I'd want.    

[NeilT]

Sounds like you did what was needed, but now it's a pain in the ass.  You might request a copy of their policy?

You might also check on Farm Bureau.  I guess I've never shopped for insurance, because they always handle things well. And if you have a place, you're supposed to insure it through them.

[HudsonHawk]

Sounds like you did what was needed, but now it's a pain in the ass.  You might request a copy of their policy?

They wouldn't even tell me the other driver's name.  Something tells me requesting a copy of their policy would get me laughed at. 

You might also check on Farm Bureau.  I guess I've never shopped for insurance, because they always handle things well. And if you have a place, you're supposed to insure it through them.

I forget who my place insurance is with.  But I don't think it's Farm Bureau.  I'll have to check into them.

[Limey]

Even if they are self-insured, there is a front policy provided by an insurer.  The State has a shit-ton of regulations on insurers governing responsiveness to claimants.  They have very restrictive time periods within which they have to acknowledge, assess and pay claims.  I think the acknowledgement has to been in something like 48 hours.  Failure to comply results in things like automatic liability and triple damages.  

File with the asshole's insurer and keep a record of every communication, including phone calls.  Check the TDI's website for details of the regulations governing insurers and nail them to the wall.  

Not responding is not an option they're allowed under State law.  Let 'em know that you know, and they'll settle your claim before you can say "Rimskycorsacov".

Lastly, your carrier, if you go that route, is required to attempt to recover your deductible as well as their loss.  You'll be out in the short term, but you should get your money back.  Direct action against the other driver's "insurer" is your best bet, though, IMHO.  

[Limey]

Re: subrogation, yes, once your insurer has paid you, they are now subrogated to all the rights you had for recovery of that money.  You still have your deductible but, as I said above, your insurer is required to include that in any recovery they go after.  

[HudsonHawk]

Even if they are self-insured, there is a front policy provided by an insurer.  The State has a shit-ton of regulations on insurers governing responsiveness to claimants.  They have very restrictive time periods within which they have to acknowledge, assess and pay claims.  I think the acknowledgement has to been in something like 48 hours.  Failure to comply results in things like automatic liability and triple damages.  

File with the asshole's insurer and keep a record of every communication, including phone calls.  Check the TDI's website for details of the regulations governing insurers and nail them to the wall.  

Not responding is not an option they're allowed under State law.  Let 'em know that you know, and they'll settle your claim before you can say "Rimskycorsacov".

Lastly, your carrier, if you go that route, is required to attempt to recover your deductible as well as their loss.  You'll be out in the short term, but you should get your money back.  Direct action against the other driver's "insurer" is your best bet, though, IMHO.  

Thanks.  The driver's company is based in Mississippi, and they've definitely gone the non-responsive route.  It' been almost two weeks and they refuse to acknowledge or provide any information, let alone assess and give me an answer on their responsibility.  

EDIT:  A little poking around reveals that insurers have 15 days to acknowledge receipt of a claim and initiate an investigation and/or request additional information.  They then have 15 *business* days to accept or reject responsibility. 

[HudsonHawk]

Re: subrogation, yes, once your insurer has paid you, they are now subrogated to all the rights you had for recovery of that money.  You still have your deductible but, as I said above, your insurer is required to include that in any recovery they go after.  

When you say "go after", they are not required to pursue the total amount, are they?  Say the repair is $10,000, they can settle for $5,000 in recovery, leaving me responsible for the other $5,000, can't they?

[Limey]

When you say "go after", they are not required to pursue the total amount, are they?  Say the repair is $10,000, they can settle for $5,000 in recovery, leaving me responsible for the other $5,000, can't they?

If you have comprehensive coverage (which I assume you do), your insurer can pay your whole claim, minus your deductible.  Then, your insurer can go after the other driver's insurance for anything up to full recovery but, if they get less than that, they just pay down your claim with what they do get.  You are still only on the hook for your deductible, and now you have a partially paid claim on your record, but the insurance did what it is supposed to do and fixed your car.

The danger here is that insurance companies do not have the wind of your righteous indignation at their backs.  They'll try to recover the full amount, including your deductible, but unless it's an ironclad case (the other driver was ticketed or somesuch) they may well accept a quick settlement for less than the whole amount, or even just chalk it off to karma and leave it at that.  Once they have paid your claim, they are now the injured party and they can choose to do with that what they will.

You are, of course, free to pursue recovery of your deductible from the other insurer, but that's rarely worth the effort and legal fees involved.

[Limey]

Thanks.  The driver's company is based in Mississippi, and they've definitely gone the non-responsive route.  It' been almost two weeks and they refuse to acknowledge or provide any information, let alone assess and give me an answer on their responsibility.  

EDIT:  A little poking around reveals that insurers have 15 days to acknowledge receipt of a claim and initiate an investigation and/or request additional information.  They then have 15 *business* days to accept or reject responsibility. 

At this point, my knowledge of this area of insurance is starting to run thin.  I do not know whether TX regulations apply to a MS-based driver or, more importantly, his insurer.  However, I'm sure even Mississippi has some applicable regulations, but if you don't have a copy of the insurance details, then I'm not sure how you proceed without "lawyering up" if the trucking company are giving you the run around.

FWIW, I always understood that the attending officer takes down the insurance details of both drivers and puts it on his report, which is given in full to both drivers.  If you don't have it, ask for a copy of the officer's full report and you may get the information you need to go directly after their insurer.  That stuff is public record, I think, so they shouldn't be able to refuse to share it.

[HudsonHawk]

FWIW, I always understood that the attending officer takes down the insurance details of both drivers and puts it on his report, which is given in full to both drivers.  If you don't have it, ask for a copy of the officer's full report and you may get the information you need to go directly after their insurer.  That stuff is public record, I think, so they shouldn't be able to refuse to share it.

I have a copy of the officer's accident report, which is where I had to get the driver's name and insurance information.  The driver refused to give it to me, which is also illegal.  Neither the driver nor his insurance company seem particularly interested in what options they have under the law, they just want to say "not my fault", turn around and walk away. 

At any rate, I think I may talk to an attorney, just to see what other options I have.  There's a principle at stake here, in addition to just my inconvenience.  And I'm not one to give up the argument easily. 

[NeilT]

Was the truck licensed in Texas?  I assumed it was.

[HudsonHawk]

Was the truck licensed in Texas?  I assumed it was.

Yes, both the other vehicle and driver are licensed in Texas.  The owner of the vehicle (the corporation) is in MS, as is whomever is administering their insurance.  So I assume that Texas laws apply.  I assume Texas laws apply no matter what, as that's where the accident occurred. 

[Limey]

Yes, both the other vehicle and driver are licensed in Texas.  The owner of the vehicle (the corporation) is in MS, as is whomever is administering their insurance.  So I assume that Texas laws apply.  I assume Texas laws apply no matter what, as that's where the accident occurred.  

If it's a TX-licensed vehicle, then the insurer must issue a TX-compliant policy and be subject to TX regulations.  I would press them on the 15 days time limit and, if they still do nothing, drop a dime on them to the TDI.

ETA:  Talk to the insurer exclusively, not the trucking firm.  The trucking firm is likely footing the bill for your claim and so has a vested interest in not settling.  The insurance company will recoup any claim settlement from its insured and so doesn't have any skin in the game except its desire not to run afoul of regulators.

[homer]

I would call the TDI before I called a lawyer.

[Bench]

Even if they are self-insured, there is a front policy provided by an insurer.  The State has a shit-ton of regulations on insurers governing responsiveness to claimants.  They have very restrictive time periods within which they have to acknowledge, assess and pay claims.  I think the acknowledgement has to been in something like 48 hours.  Failure to comply results in things like automatic liability and triple damages.  

Do the prompt pay act and bad faith statutes in the Insurance Code apply to third-party claims?

[Limey]

Do the prompt pay act and bad faith statutes in the Insurance Code apply to third-party claims?

As we are dealing with property damage here, not injury, I suspect that they do.

[bubba]

I had a  similar situation several years ago.  The truck was in the left turn lane (the road went left or right) and I was going right.  The truck moved into the right turn lane and hit my truck. The police officer explained that I it was a matter of he said/he said.  The truck driver apologized and said his CDL would have been at risk and there was only relatively minor damage to my vehicle and none to his truck.  Maybe there is a bias toward truck drivers.  I don't know

[HudsonHawk]

I had a  similar situation several years ago.  The truck was in the left turn lane (the road went left or right) and I was going right.  The truck moved into the right turn lane and hit my truck. The police officer explained that I it was a matter of he said/he said.  The truck driver apologized and said his CDL would have been at risk and there was only relatively minor damage to my vehicle and none to his truck.  Maybe there is a bias toward truck drivers.  I don't know

DPS officer said that they don't decide fault or blame, they just documen the facts. That its up to the two insurance companies to decide who pays for what. Which is the dumbest thing ever.

On a side note, there were several factual errors in the police report of my accident. I'll have to contact them to see if I can get it amended. I doubt it.

[HudsonHawk]

Quick conversation with a lawyer friend, just as conversation, not as professional advice.  If I understand correctly, as a third party, the other guy's insurance has no legal obligation to deal with me fair and equitably, or even deal with me at all, only a business driver.  Legally, they could simply tell me to stick it up my ass.  My recourse is to sue the other driver, and as his insurer, they would be obligated to pay for any judgment against him, up to the limits of his policy, which is really their only motivation for doing so. 

Still nothing.  Stay tuned. 

[Limey]

Quick conversation with a lawyer friend, just as conversation, not as professional advice.  If I understand correctly, as a third party, the other guy's insurance has no legal obligation to deal with me fair and equitably, or even deal with me at all, only a business driver.  Legally, they could simply tell me to stick it up my ass.  My recourse is to sue the other driver, and as his insurer, they would be obligated to pay for any judgment against him, up to the limits of his policy, which is really their only motivation for doing so.  

Still nothing.  Stay tuned.  

I think you will save yourself an awful lot of time and frustration by making a claim against your own policy.  It's what you buy it for.

[HudsonHawk]

I think you will save yourself an awful lot of time and frustration by making a claim against your own policy.  It's what you buy it for.

Yes, but it would be the end of my policy with them.  They will drop me like a hot potato(e).  That will have frustration as well. 

[Ty in Tampa]

Yes, but it would be the end of my policy with them.  They will drop me like a hot potato(e).  That will have frustration as well. 

Whether or not this pertains to your situation, I've made claims to my insurance company for several thousands of dollars in the past with no recognizable consequences. I've been with them for decades though and have a clean driving record. Is this not your case?

[HudsonHawk]

Whether or not this pertains to your situation, I've made claims to my insurance company for several thousands of dollars in the past with no recognizable consequences. I've been with them for decades though and have a clean driving record. Is this not your case?

Yes, but this would be the second claim in under a year.  They cheerfully paid out a $5,000 claim this past summer when a light pole jumped out at me at Walgreen's.  I'm guess this will be at least a $6,000-8,000 bill.

[Ty in Tampa]

Yes, but this would be the second claim in under a year.  They cheerfully paid out a $5,000 claim this past summer when a light pole jumped out at me at Walgreen's.  I'm guess this will be at least a $6,000-8,000 bill.

You can always check with them. Talk to your agent and see if they can advise you of any consequences if you make a claim.

[HudsonHawk]

You can always check with them. Talk to your agent and see if they can advise you of any consequences if you make a claim.

I sort of did that, and the agent said "yeah, if we pay and then don't recover, it'll be a payout on your policy.  Can't tell you what that means though until it happens and we run the numbers."  To be fair, my insurer has been very helpful.  And cheerful.  Perhaps *that's* what's making me nervous. 

[Ty in Tampa]

I sort of did that, and the agent said "yeah, if we pay and then don't recover, it'll be a payout on your policy.  Can't tell you what that means though until it happens and we run the numbers."  To be fair, my insurer has been very helpful.  And cheerful.  Perhaps *that's* what's making me nervous.  

You're in a tough position. You really don't have the firepower to take on the trucker-fuckers and you run a risk having your insurance company take care of it. I'd probably still go with the insurance company simply because as a good customer for a long time, you will get extra consideration and will likely continue to pay in for some time to come.

[Duman]

Back in 09, I had two cars totaled in a months time.  My insurance didn't drop me but I started shopping because I expected it to happen.  I found I was overpaying so I dropped them. 

[Limey]

Yes, but it would be the end of my policy with them.  They will drop me like a hot potato(e).  That will have frustration as well. 

They cannot drop you because of adverse losses.  It's in the TDI rules.

[HudsonHawk]

They cannot drop you because of adverse losses.  It's in the TDI rules.

They can cancel you for two or more claims in a 12 month period.  They can not renew you for whatever reason they want. 

[HudsonHawk]

Finally got a call back from other guys insurance today, and they said a couple things:  1) three weeks later, the other driver (their insured) still won't talk to them, 2) the accident report is not clear about my being stopped, so they're going to assume I wasn't, which they interpret as their driver is not 100% at fault; therefore, they owe nothing and 3) they suggested I file with my own.   

I called and talked to the DPS trooper who worked the accident, and he said he tried to make it clear that it was not my fault...as in 0% my fault.  He's going to talk to his superiors to see if there's any revision he can issue to make it more clear, but insurance companies will try to do everything they can to not pay, so even then I may have to sue if I want them to respond. 

[94CougarGrad]

What a shitty situation. I once got hit by a pickup pulling a flatbed trailer when he crossed into my lane. Probably $1500 worth of damage to my little Nissan truck, but the asshat wasn't even insured. At all. Meh.

I will say that if your insurer does decline to renew you, I can refer you to a friend who's an insurance agent for a new policy if you like. I have some relatives who have multiple wrecks and even DWIs on their records and he managed to get them coverage with a really good company that doesn't cost them an arm and a leg.

[HudsonHawk]

What a shitty situation. I once got hit by a pickup pulling a flatbed trailer when he crossed into my lane. Probably $1500 worth of damage to my little Nissan truck, but the asshat wasn't even insured. At all. Meh.

I will say that if your insurer does decline to renew you, I can refer you to a friend who's an insurance agent for a new policy if you like. I have some relatives who have multiple wrecks and even DWIs on their records and he managed to get them coverage with a really good company that doesn't cost them an arm and a leg.

This is what sucks the most.  I like...I mean I REALLY like, my insurance company, as much as it's possible to like an insurance company.  I really hate to have to go somewhere else. 

[BizidyDizidy]

This is what sucks the most.  I like...I mean I REALLY like, my insurance company, as much as it's possible to like an insurance company.  I really hate to have to go somewhere else. 

Maybe stop playing bumpers cars then

[HudsonHawk]

Maybe stop playing bumpers cars then

I was wondering when you were going to drop your pants and flap your ass in this thread.  Frankly, I'm surprised it took this long. 

[Bench]

I may have to sue if I want them to respond. 

That's always my advice.

[Mr. Happy]

That's always my advice.

Well said, counselor. Sue the bastards.

[HudsonHawk]

Is $10,000 still the limit in small claims court?  My problem will be finding a lawyer who'd be interested in small potatoes. 

[BizidyDizidy]

Didn't want to let you down

[Bench]

Is $10,000 still the limit in small claims court?  My problem will be finding a lawyer who'd be interested in small potatoes. 

Yes, $10,000 is the limit. 

[HudsonHawk]

Yes, $10,000 is the limit. 

So I'm guessing that's my option, which would be cheaper, quicker and easier, but is generally lawyerless, correct?  Of course, I have no clue as to the jurisprudence in Freestone County, or how efficient it would be. 

[Bench]

So I'm guessing that's my option, which would be cheaper, quicker and easier, but is generally lawyerless, correct?  Of course, I have no clue as to the jurisprudence in Freestone County, or how efficient it would be.  

Yes, they are generally lawyerless, but the defendant trucking company will no doubt send a lawyer to represent them.  Freestone County small claims court.  Filing fee of $41 plus a service fee of $85.

In my experience, navigating a small claims court is pretty easy, probably even more so in a rural county where the clerks are likely to be friendlier and more helpful than in a city.  Basically you fill out a form that is the petition, attach copies of relevant documents and an explanation of the alleged facts and then show up the day of the hearing to explain your side to the judge who will probably make his or her decision right there.  It's a fairly informal process for the judiciary, and I have full confidence in your ability to articulate your claim and advance your interests.  

[BizidyDizidy]

Please post the day and time if you go this route, will see if I can make it down to be in attendance.

[homer]

Please post the day and time if you go this route, will see if I can make it down to be in attendance.

Same here.

[Bench]

Please post the day and time if you go this route, will see if I can make it down to be in attendance.

Freestone County jurisprudence will never be the same. 

[Limey]

It's a fairly informal process for the judiciary, and I have full confidence in your ability to articulate your claim and advance your interests.  

Just remember to take your hat off.

[HudsonHawk]

I'm likely to put on my good ol boy clothes and use my natural accent which is more Jed Clampett than Gary Cooper (that's not really me in my avatar).  If figure that'll help. But I'll definitely spread the word. 

[HudsonHawk]

Yes, they are generally lawyerless, but the defendant trucking company will no doubt send a lawyer to represent them.  Freestone County small claims court.  Filing fee of $41 plus a service fee of $85.

My understanding is that I cannot sue the company or the insurance company, I can only sue the other driver.  No doubt Sanderson Farms will want to represent, and of course so will the insurance company, as they'll be on the hook for any damages, but the driver will have to appear, will he not?  He's successfully ducked any response so far, but I'm guessing he can't dodge the long-arm of the Freestone County Justice of the Peace. 

[NeilT]

My understanding is that I cannot sue the company or the insurance company, I can only sue the other driver.  No doubt Sanderson Farms will want to represent, and of course so will the insurance company, as they'll be on the hook for any damages, but the driver will have to appear, will he not?  He's successfully ducked any response so far, but I'm guessing he can't dodge the long-arm of the Freestone County Justice of the Peace. 

I'm certainly no litigator, and this is not legal advice, but I thought you always named everybody standing within the length of a football field as a plaintiff?

[Bench]

My understanding is that I cannot sue the company or the insurance company, I can only sue the other driver.  No doubt Sanderson Farms will want to represent, and of course so will the insurance company, as they'll be on the hook for any damages, but the driver will have to appear, will he not?  He's successfully ducked any response so far, but I'm guessing he can't dodge the long-arm of the Freestone County Justice of the Peace.  

I don't see why you can't sue the employer.  He was presumably acting in the course and scope of his employment, which would make the company liable.  I'd sue both the driver and the company - you're more likely to get a check quickly from the company than the driver.

I think you're right that you don't have a case against the insurance company.  

[Bench]

I'm certainly no litigator, and this is not legal advice, but I thought you always named everybody standing within the length of a football field as a plaintiff?

Hell, sue the damned chickens as well. 

[HudsonHawk]

I don't see why you can't sue the employer.  He was presumably acting in the course and scope of his employment, which would make the company liable.  I'd sue both the driver and the company - you're more likely to get a check quickly from the company than the driver.

I think you're right that you don't have a case against the insurance company.  

That was my understanding of my options under Texas law.  That I could only sue the driver...I mean I could sue the company, but would have to prove that the company was negligent in allowing him to drive their vehicle.  Seeing as how he held a valid CDL, I'm not sure I could do that.  Of course, I don't know if the companies actions *after* the incident, claiming that his failure to maintain appropriate speed and control of his rig and crossing over the center line of the road were not contributing factors to his ripping a hole in my truck, somehow ratifies his behavior.  Alas...this is why I need a lawyer. 

[HudsonHawk]

Hell, sue the damned chickens as well. 

Did I mention the story about PETA putting up a roadside memorial to the chickens who died in an accident (not mine) on their way to the slaughterhouse?

[Limey]

I don't see why you can't sue the employer.  He was presumably acting in the course and scope of his employment, which would make the company liable.  I'd sue both the driver and the company - you're more likely to get a check quickly from the company than the driver.

This.  His employer is definitely on the hook as he was in a company vehicle; doesn't matter if he was on company business at the time (although in this case I assume he was).  I have clients who have had employees cause fatalities while driving at weekends, and they / their insurers are on the hook as it's a company vehicle that was being driven.

I think you're right that you don't have a case against the insurance company.  

Nope.  And while they have the option to participate in the defense, they are unlikely to do so as this claim will not reach the level at which actual insurance kicks in.  HH will be up against the trucking company and their lawyers.

Question:  does bringing a lawyer to small claims court help or hurt your chances?  I.e., is it using a hammer to crack a nut?

[NeilT]

Hell, sue the damned chickens as well. 

I think what a litigator would advise you is that you don't have determine whether the company was responsible to name them as a plaintiff, and the same goes for the chickens.  I do suspect the chickens might have been innocent bystanders.

[HudsonHawk]

Question:  does bringing a lawyer to small claims court help or hurt your chances?  I.e., is it using a hammer to crack a nut?

Especially if I want to give the impression that I'm just a regular local guy who was treated unfairly by the large out-of-state corporation.

[Bench]

Especially if I want to give the impression that I'm just a regular local guy who was treated unfairly by the large out-of-state corporation.

I will always heartily endorse the hiring of a lawyer but small claims court exists to ease the process for non-lawyers. It's not going to hurt the case to bring a lawyer but it's likely an unneccessary expense.

[Bench]

That was my understanding of my options under Texas law.  That I could only sue the driver...I mean I could sue the company, but would have to prove that the company was negligent in allowing him to drive their vehicle.  Seeing as how he held a valid CDL, I'm not sure I could do that.  Of course, I don't know if the companies actions *after* the incident, claiming that his failure to maintain appropriate speed and control of his rig and crossing over the center line of the road were not contributing factors to his ripping a hole in my truck, somehow ratifies his behavior.  Alas...this is why I need a lawyer. 

Negligent hiring is a different claim altogether. The company harmed you through the actions of it's employee while he was acting in the course and scope of his employment. They are on the hook.

[Limey]

Especially if I want to give the impression that I'm just a regular local guy who was treated unfairly by the large out-of-state corporation.

I was thinking that the trucking firm may look like they have something to hide by lawyering up for small claims court.

[NeilT]

And be sure and throw in a claim for loss of consortium and violation of the rule against perpetuities, just don't exceed the jurisdictional limits.

[Andyzipp]

That was my understanding of my options under Texas law.  That I could only sue the driver...I mean I could sue the company, but would have to prove that the company was negligent in allowing him to drive their vehicle.  Seeing as how he held a valid CDL, I'm not sure I could do that.  Of course, I don't know if the companies actions *after* the incident, claiming that his failure to maintain appropriate speed and control of his rig and crossing over the center line of the road were not contributing factors to his ripping a hole in my truck, somehow ratifies his behavior.  Alas...this is why I need a lawyer. 

When I worked for the beer distributor, people used to try to sue us all the time.  Hell, since we had Miller on the side of one truck they brought suit against them as well.

[gundy315]

A suggested plan of action:

1. Get at least one repair estimate from the body shop(s) of your choice, if you haven't done so already.  Be clear with the body shop that you need a comprehensive estimate*.

2. Send demand letters to (a) the company, (b) the company's registered agent, (c) the driver [if you have his address], and (d) the insurance company, via Certified Mail, Return Receipt Requested.  Attach copies of the estimates. Request payment of the repair estimate amount by a reasonable date -- maybe 2 weeks. State you wish to resolve the dispute amicably, but will be forced to pursue legal action in the event of further recalcitrance.

3. Save copies of the letters as well as all of the CM/RRR information, and be sure to keep the return receipts when they come back.

4. If/When you do not obtain payment by the requested date, then file with small claims court.  Attach the letters, estimates, and proof of delivery, and the accident report (especially if you can get a revised report placing fault on truck driver) to your petition.


* make sure the estimate will cover all the repairs, so the body shop will not come back asking for more money (as body shops are often wont to do) after you have received payment from the company/driver/insurance, who will likely condition payment on signing a full settlement and release.

[NeilT]

Excellent advice.

[Bench]

A suggested plan of action:

1. Get at least one repair estimate from the body shop(s) of your choice, if you haven't done so already.  Be clear with the body shop that you need a comprehensive estimate*.

2. Send demand letters to (a) the company, (b) the company's registered agent, (c) the driver [if you have his address], and (d) the insurance company, via Certified Mail, Return Receipt Requested.  Attach copies of the estimates. Request payment of the repair estimate amount by a reasonable date -- maybe 2 weeks. State you wish to resolve the dispute amicably, but will be forced to pursue legal action in the event of further recalcitrance.

3. Save copies of the letters as well as all of the CM/RRR information, and be sure to keep the return receipts when they come back.

4. If/When you do not obtain payment by the requested date, then file with small claims court.  Attach the letters, estimates, and proof of delivery, and the accident report (especially if you can get a revised report placing fault on truck driver) to your petition.


* make sure the estimate will cover all the repairs, so the body shop will not come back asking for more money (as body shops are often wont to do) after you have received payment from the company/driver/insurance, who will likely condition payment on signing a full settlement and release.

Good plan.

[HudsonHawk]

And be sure and throw in a claim for loss of consortium and violation of the rule against perpetuities, just don't exceed the jurisdictional limits.

While I'd love to throw around some lawyerin' words, I know that small claims JP courts can only award monetary damages, they can't supply injunctive relief (I'm probably learning way more than I should). 

[HudsonHawk]

When I worked for the beer distributor, people used to try to sue us all the time.  Hell, since we had Miller on the side of one truck they brought suit against them as well.

I know that feeling.  If someone gets hit by a garbage truck, they dig through it and if they find a discarded motor oil bottle with our "Big Oil" logo on it, we somehow end up getting named in the suit.

[HudsonHawk]

2. Send demand letters to (a) the company, (b) the company's registered agent, (c) the driver [if you have his address], and (d) the insurance company, via Certified Mail, Return Receipt Requested.  Attach copies of the estimates. Request payment of the repair estimate amount by a reasonable date -- maybe 2 weeks. State you wish to resolve the dispute amicably, but will be forced to pursue legal action in the event of further recalcitrance.

Who would be the "company's registered agent"?  Would I still do this if the insurance company comes back and says "we evaluated your claim and have denied it"?

[OregonStrosFan]

I will always heartily endorse the hiring of a lawyer but small claims court exists to ease the process for non-lawyers. It's not going to hurt the case to bring a lawyer but it's likely an unneccessary expense.

Does Texas have any equivalent to ORS 20.080 (allows for the recovery of attorney fees in tort actions under $10K provided certain conditions are met)? If so, there are likely pleanty of attorneys who'd be willing to take on the case.  Moreover, the hammer of potential attorney fee liability often gets the carriers to act more reasonably on the front end as well.

[gundy315]

Who would be the "company's registered agent"?  Would I still do this if the insurance company comes back and says "we evaluated your claim and have denied it"?

Every company doing business in a given state is required to have a registered agent for service of process on file with the Secretary of State.  That is who is "served with process" (delivered notice of lawsuits).  So, the trucking company has a registered agent in their home state (I think you said Miss.), but they should also have one in Texas, as well.  If you want to PM me with the company name, I'll pull that info for you.

I personally don't think it matters if the insurance company blows you off.  You won't being suing the insurance company, just the driver and the trucking company (assuming they own the vehicle/trailer, or employ the driver).  In fact, I would just CC the insurance company on your demand letters to the driver and company.  

The goal is to cover all your bases, creating a paper trail documenting (1) your valid claim, and (2) the company's/driver's refusal to take responsibility.  Thus, avoiding a "he said, she said" scenario in front of a judge.

[NeilT]

While I'd love to throw around some lawyerin' words, I know that small claims JP courts can only award monetary damages, they can't supply injunctive relief (I'm probably learning way more than I should). 

Those probably aren't the lawyerin words you want to pick. 

[Bench]

While I'd love to throw around some lawyerin' words, I know that small claims JP courts can only award monetary damages, they can't supply injunctive relief (I'm probably learning way more than I should). 

You can't go wrong if you stick to "It ain't right and it ain't fair."

[Limey]

While I'd love to throw around some lawyerin' words, I know that small claims JP courts can only award monetary damages, they can't supply injunctive relief (I'm probably learning way more than I should). 

Neil was talking about loss of consortium so, if you want to include that, don't go telling them that you're getting injunctive relief!  Jeez!  Amateurs.

[HudsonHawk]

Every company doing business in a given state is required to have a registered agent for service of process on file with the Secretary of State.  That is who is "served with process" (delivered notice of lawsuits).  So, the trucking company has a registered agent in their home state (I think you said Miss.), but they should also have one in Texas, as well.  If you want to PM me with the company name, I'll pull that info for you.

I personally don't think it matters if the insurance company blows you off.  You won't being suing the insurance company, just the driver and the trucking company (assuming they own the vehicle/trailer, or employ the driver).  In fact, I would just CC the insurance company on your demand letters to the driver and company.  

The goal is to cover all your bases, creating a paper trail documenting (1) your valid claim, and (2) the company's/driver's refusal to take responsibility.  Thus, avoiding a "he said, she said" scenario in front of a judge.

Sweet!  PM sent.

[Lefty]

Did I mention the story about PETA putting up a roadside memorial to the chickens who died in an accident (not mine) on their way to the slaughterhouse?

I know they were wanting or trying to do that, did it actually happen?

[HudsonHawk]

I know they were wanting or trying to do that, did it actually happen?

I know they applied to TxDot for it, but haven't seen it or heard if it was approved or not.

[HudsonHawk]

Got a call this morning from the parent company of the claims administrator.  They are going to send out an appraiser.  I'm guessing this means they are going to own up?  Offer me a settlement?

[Limey]

Got a call this morning from the parent company of the claims administrator.  They are going to send out an appraiser.  I'm guessing this means they are going to own up?  Offer me a settlement?

Maybe...

Once they have a dollar value to your loss, they can make a decision on whether to pay or fight.  Paying at least something - they'll probably start at 50% as they claim it's a 50/50 incident - is their most likely stance for a small claim.  You'll have to move them up from there by threatening things like bad faith.

[HudsonHawk]

Maybe...

Once they have a dollar value to your loss, they can make a decision on whether to pay or fight.  Paying at least something - they'll probably start at 50% as they claim it's a 50/50 incident - is their most likely stance for a small claim.  You'll have to move them up from there by threatening things like bad faith.

At that point, we'd be arguing over a few thousand dollars.  I'd hope that a multi-billion dollar, publically traded company doesn't want its lawyers dragged to Teague, TX for a few thousand dollars.  They'd spend that much in travel expenses.  

[Bench]

At that point, we'd be arguing over a few thousand dollars.  I'd hope that a multi-billion dollar, publically traded company doesn't want its lawyers dragged to Teague, TX for a few thousand dollars.  They'd spend that much in travel expenses.  

They'll probably make you spend the money on the filing fee before forking over the other few thousand bucks.

[Limey]

At that point, we'd be arguing over a few thousand dollars.  I'd hope that a multi-billion dollar, publically traded company doesn't want its lawyers dragged to Teague, TX for a few thousand dollars.  They'd spend that much in travel expenses.  

You'd think.  But multi-billion dollar, publicly traded companies aren't immune from hiring idiots.

[HudsonHawk]

They'll probably make you spend the money on the filing fee before forking over the other few thousand bucks.

Well, that would be included in the amount they owed me.  And if it took me spending a couple hundred bucks to get them to pony up, frankly I'd be ok with that.  I'm not unreasonable. 

[HudsonHawk]

You'd think.  But multi-billion dollar, publicly traded companies aren't immune from hiring idiots.

True, but I was thinking their claims administrator wouldn't necessarily be an idiot, and would recognize right away that they'd spend more fighting this than I'm asking in damages in a case they'd likely lose.  And it's not like there's a huge principle at stake for them on this deal. 

[Bench]

And it's not like there's a huge principle at stake for them on this deal. 

WON'T SOMEBODY PLEASE THINK OF THE CHICKENS!

[Limey]

True, but I was thinking their claims administrator wouldn't necessarily be an idiot...

And that would be a mistake.  My job wouldn't exist if insurance company employees were consistently competent.

[NeilT]

WON'T SOMEBODY PLEASE THINK OF THE CHICKENS!

I'd already suggested that they be named as defendants.

[NeilT]

Got a call this morning from the parent company of the claims administrator.  They are going to send out an appraiser.  I'm guessing this means they are going to own up?  Offer me a settlement?

SOMEBODY AT THE COMPANY OBVIOUSLY READS THIS BOARD!

[HudsonHawk]

Went and got an independent appraisal this morning, and then the company appraiser came out.  We shall see how close they are and what the Chicken Kings offer.   

[HudsonHawk]

The two appraisals (one on my own, one from the appraiser the other insurance company sent out) were within $50 of each other.  I still don't know what this means, if I'm going to be offered a settlement or they're taking responsibility (other insurance company still refuses to talk to me), but at least I have a fairly good idea of how much we're talking about here. 

[HudsonHawk]

So to wrap this up (I hope)...other guy's claims people called this morning and said there'd be a check in the mail today for the full amount of the appraisal. 

This was a fun discussion.  Thanks.

[Bench]

So to wrap this up (I hope)...other guy's claims people called this morning and said there'd be a check in the mail today for the full amount of the appraisal. 

This was a fun discussion.  Thanks.

You can still sue, but I think your chances of success in the lawsuit have diminished. 

[HudsonHawk]

You can still sue, but I think your chances of success in the lawsuit have diminished. 

Well, I have to sign a release to get my money, and I don't want anything more than my truck fixed anyway.  I'm not even asking them to pay for a rental car.  Though it would have been my first time suing someone, which could have been fun...

[Bench]

Well, I have to sign a release to get my money, and I don't want anything more than my truck fixed anyway.  I'm not even asking them to pay for a rental car.  Though it would have been my first time suing someone, which could have been fun...

The release is simply an excellent defense, but not a barrier to your filing suit.  It would be a frivolous lawsuit, but you wouldn't be the first. 

[Ty in Tampa]

Let us know when the check is cashed.

[Col. Sphinx Drummond]

Sounds like a good outcome, all things considered.

[Limey]

So to wrap this up (I hope)...other guy's claims people called this morning and said there'd be a check in the mail today for the full amount of the appraisal. 

Glad you got a satisfactory result.